Obama, Master of Life and Death

This blog is cross-posted on lsdimension

Another victory for executive power, another loss for the Rechtsstaat. According to a US federal judge, there are no legal limits on the President’s power to order the killing of alleged terrorists outside the US, even if these individuals happen to be US citizens. At least, no legal limits that can be enforced in a US courtroom – Judge Bates of the DC District Court ruled that the matter amounts to an unjusticiable “political question”.

The NY Times:

WASHINGTON — A federal judge threw out a lawsuit on Tuesday that sought to block the American government from trying to kill Anwar al-Awlaki, a United States citizen and Muslim cleric accused of playing a significant role in Al Qaeda’s branch in Yemen.

The ruling clears the way for the Obama administration to continue to try to kill Mr. Awlaki and represents a victory in its efforts to shield from judicial review one of its most striking counter-terrorism policies.

The court not only rejected the lawsuit on the grounds that Mr. Awlaki’s father had no standing to file it on behalf of his son, but held that decisions to mount targeted killings overseas are a “political question” for executive officials to make — not judges.

In an 83-page opinion, Judge John Bates of the District of Columbia district court acknowledged that the case raised “stark, and perplexing, questions” — including whether the president could “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based the mere assertion that he is a dangerous member of a terrorist organization.

But even though the “legal and policy questions posed by this case are controversial and of great public interest,” he wrote, they would have to be resolved on another day or outside of the courts, since this case had to be dismissed at the onset.

The Justice Department had no immediate comment on the ruling. But Jameel Jaffer, a lawyer for the American Civil Liberties Union who helped represent Mr. Awlaki’s father, Nasser al-Awlaki, in the matter, called the decision “a profound mistake” that he said would dangerously expand presidential powers.

“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation,” Mr. Jaffer said. “It would be difficult to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”

Judge Bates rejected the notion that his ruling amounting to holding that the executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” His ruling emphasized that it was limited to the circumstances of Mr. Awlaki, whom the intelligence community has said is engaged in specific operational planning of attacks against the United States.

“The court only concludes that it lacks capacity to determine whether a specific individual in hiding overseas, whom the director of national intelligence has stated is an ‘operational member’ ” of Al Qaeda’s Yemen branch, Judge Bates said, “presents such a threat to national security that the United States may authorize the use of lethal force against him.” Robert Chesney, a University of Texas law professor who specializes in national security law, said the limits of the theory articulated by Judge Bates would be a matter of hot dispute.

“The slippery slope is obviously the concern here,” Mr. Chesney said. “Judge Bates is at pains not to decide this question for other circumstances. But the question remains, what else besides this fact pattern would enable the government to have the same result — no judicial involvement in a targeted-killing decision?”

The A.C.L.U., along with the Center for Constitutional Rights, brought the lawsuit on behalf of Mr. Awlaki’s father last summer. It first had to receive permission to represent Nasser al-Awlaki from the Treasury Department, which has labeled Anwar al-Awlaki a “specially designated global terrorist.

…”

Granted, Judge Bates was in an unenviable position, having to juggle national security concerns and fundamental human rights. No matter how he would have ruled, he was going to be severely criticized.  Nevertheless, that doesn’t delegitimize critique on his ruling – here are three points:

First, Judge Bates denied the father of Mr. al-Awlaki standing to bring the claim, arguing that Mr. al-Awlaki’s incommunicado status is of his own choosing – surely he could easily walk up to the US embassy in Yemen to claim his constitutional rights. It is rather unfortunate that the judge relies on this legal fiction: who really believes that the US government would quietly sit down with one of the most sought-after individuals on its hit list, rather than fire a – Presidentially authorized –missile at him as soon as he discloses his location?

Second, the political question doctrine is a well-known and legitimate tool that prevents judges from having to meddle in political issues, such as foreign affairs and national security. Yet in this case national security concerns directly challenge one of the most fundamental human rights, namely the right not to be killed without due process (presuming that capital punishment is okay in the first place, which it is not). It’s the very raison-d’être of the judiciary to offer a counter-balance against the executive in these situations – Judge Bates effectively undermines the carefully constructed checks and balances of the American constitutional system.

Third, the slippery slope is very real. Judge Bates understandably tries to do away with this case on the basis of exceptional circumstances, arguing that this case of a “specially designated global terrorist” is one-of-a-kind. Yet a similar logic applied to the 775 “unlawful combatants” at Guantánamo Bay, the approximately 3000 extraordinarily renditioned individuals, and the War on Terror as a whole. Repeated exceptions for hard cases dilute the rule of law. As the ACLU stated, this expansion of executive power could prove more dangerous to American liberty than a former imam in Yemen.

P.S.: It would be interesting if this case goes up to the Supreme Court, though I’m not optimistic about the outcome of such a ruling.

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