September 30, 2011
The Problem With Unilaterally Assassinating American Citizens Without Any Due Process At All Is….

Manicchill asked me earlier about the recent killing of al-Awlaki by U.S. drones in Yemen.  Below is a rebloggable version of my response in which I identified WHY THIS IS REALLY BAD AND YOU SHOULD BE VERY CONCERNED.  I have done my best to describe many of the disturbing legal issues (certainly not all) surrounding the Obama’s administration’s decision to assassinate the first American citizen on foreign soil without any 5th Amendment-guaranteed Due Process.

Getting straight to the issue: the basic, perfunctory legal analysis is as follows: Bush gave the CIA the authority to kill any U.S. citizens overseas if “strong evidence existed” that the citizen was carrying out or planning terrorist activities against the United States.  Of course, what constitutes “strong evidence,” “terrorist activity,” “carrying out,” “planning,” or even how you define “against the United States” is left undefined.  Which is problematic for obvious reasons.

All of this is very clearly forbidden by the 5th Amendment.  ”No person shall…be deprived of Life, Liberty, or Property without due process of law.”  Al-Awlaki was, by definition, deprived of Life without Due Process of law.  He was not charged.  He had no trial.  The White House made a unilateral determination that he needed to die.  And of course, the “strong evidence” on which that determination was made is isolated from judicial review on the basis of the “State Secrets” doctrine.  So we have no way of knowing what the evidence was.  And even if we did, “strong evidence” remains nebulously defined, and our friendly Counterterrorism Czar John Brennan thinks we should be “flexible” with our definitions in this area.  So you can do the math on that one.

The problem with cases like this is they are hard to argue to the public at large: the perennial challenge of Civil Liberties’ advocates is protesting unjust policies as applied against “deserving” or “evil” targets victims.  Al-Awlaki clearly was anti-U.S.   It is more likely than not, simply based on the evidence available to the public, that he was involved in planning terrorist activity or wanted to be.  But as I’m sure all of us who will be shouting at our friends and family that are shrugging their shoulders right now: that’s not the frigging point.  Power granted without meaningful restrictions and limits is also power that can and will be abused.  This is a legal precedent.  What the Obama administration has done is made it ok for the President of the United States to unilaterally order the assassination of an American citizen without any judicial review or access to criminal justice whatsoever.  That is a power which can be applied to anyone who meets the “flexible” criteria initially given under Bush’s original Executive Order to the CIA.  So the President is limited only by his own conscience.  There’s not a judge in the nation that can stop him.    That means nobody can stop the President from killing anyone he wants to label a terrorist.  Nobody can stop him.  No one.

This is a problem, of course, because most people just shrug their shoulders and say “Well i’m a good person.  I’m not a terrorist, so what do I have to worry about?”  No.  YOU think you’re not a terrorist.  But the government doesn’t know that when you go to visit that mosque down the street, you’re just trying to learn more about Islam.  They don’t know that when you check out a book from the library on Arabic, you’re just trying to learn a new language.  They don’t know that when you try to find Al-Qaeda’s website on-line, you’re just trying to see what they’re saying so you can understand what they’re really about.  They don’t understand that when you travel to the United Arab Emirates, you’re only there to experience the culture and learn more about the Middle East.  The government doesn’t know that you’re completely ignorant of the well-known terrorist who’s standing next to you at a streetcorner in Dubai.  

All of a sudden, an innocent and easily explainable chain of events becomes grounds for killing you.  Events you could explain if you were allowed to be put on trial instead of unilaterally assassinated by a President you might have voted for.

So the question then becomes: if this is so blatantly unconstitutional, then why hasn’t the Supreme Court ruled it so?  A couple reasons: a) someone needs to bring the case first.  The Supreme Court cannot declare laws unconstitutional Sua Sponte (by the Court’s own motion).  They can only rule on cases which come before them; b) anyone who brings the case has to have Standing to sue, and there is a vicious trend in the Federal judiciary right now of blowback against public-interest lawyers which the Obama administration has been using to its advantage.  Jon Turley explains:

Because of his high-visibility status, we were informed of al-Aulaqi’s killing. However, nothing in this policy requires a president to be informed of such assassinations and the congressional oversight committees are widely viewed as rubber stamps for intelligence operations. It is not simply a question of whether a president can order such a killing of a citizen (which Bush also previously ordered), but the circumstances under which such an order can be given. Obama put al-Aulaqi on a hit list many months ago. There is no process, however, to secure any judicial review or to satisfy any showing despite over a year of such targeting. These questions remain unanswered because the Obama Administration has been successful in blocking public interest lawsuits seeking judicial review of his assassination list.

Turley goes further to explain the Standing issue:

Previously, the Administration succeeded with an almost mocking argument that al-Aulaqi’s family could not file a lawsuit seeking review of the power to assassinate because al-Aulaqi himself should appear to ask for review. Thus, after saying that it would kill al-Aulaqi on sight, the Justice Department insisted that he should walk into a clerk’s office and ask for declaratory judgment. Even if his family were to sue for wrongful death, the Administration would likely use the military and state secrets privilege to block the lawsuit. Thus, the President has the authority to not simply kill citizens but to decided whether they can sue him for the act.

In other words, the Supreme Court has yet to rule on the unconstitutionality of the issue because the Obama administration (and its predecessors) have been fantastically successful in arguing that nobody can bring suit over these policies because they don’t have Standing.  So even if Obama’s new “assassination power” is blatantly unconstitutional, it will never be declared so until a federal court grants someone standing to bring suit.  And even if the Plaintiff appealed the Standing issue all the way to the Supreme Court, the standing question would be decided on a motion-to-dismiss, meaning they someone has to get all the way to the Supreme Court and WIN on the standing issue, then go back down to the District Court level and argue the case on the merits all the back up to the Supreme Court, who can then deny a Writ of Certiorari (decline to hear the case), which may leave the Plaintiff with an adverse ruling from an unsympathetic Federal Circuit Court panel.

In other words, it’s fucking tough to get these kinds of laws ruled unconstitutional, which is part of the reason that Civil Libertarians like myself freak out so much over them.  If a lawsuit was filed today, it could take years just to litigate the Standing issue all the way to the Supreme Court.  And then several more years to litigate the case on the merits.

So that’s why this is such an awful precedent.  That’s why this is one more reason Liberal, Progressive voters should not vote for Obama out of conscience.  Pragmatic, Lesser-of-two-evils voting?  I can understand that.  But I, for one, cannot in good conscience cast my vote for a man who has willfully participated in laying the 5th Amendment to waste, and potentially giving a much more bloodthirsty, unscrupulous future president the power to assassinate anyone he wishes.

  1. densemilt reblogged this from letterstomycountry
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  4. 50statepress said: Well said. When asked about the standard of proof for an “Executive Capture or Kill Order” for a US citizen, the President’s spokesman - Jay Carney - simply brushed the question aside.
  5. mrsrobinsonsghost reblogged this from absurdreasoning
  6. letterstomycountry posted this