Associated Press & Kevin Gosztola / Firedog Lake – 2014-04-05 00:59:22
Judge Dismisses Lawsuit over Drone Strikes
WASHINGTON (April 4, 2014) — A federal judge on Friday dismissed a lawsuit against Obama administration officials for the 2011 drone-strike killings of three US citizens in Yemen, including an al-Qaida cleric.
US District Judge Rosemary Collyer said the case raises serious constitutional issues and is not easy to answer, but that “on these facts and under this circuit’s precedent,” the court will grant the Obama administration’s request.
The suit was against then-Defense Secretary Leon Panetta, then-CIA Director David Petraeus and two commanders in the military’s Special Operations forces.
Permitting a lawsuit against individual officials “under the circumstances of this case would impermissibly draw the court into ‘the heart of executive and military planning and deliberation,'” said Collyer. She said the suit would require the court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.
“Defendants must be trusted and expected to act in accordance with the US Constitution when they intentionally target a US citizen abroad at the direction of the president and with the concurrence of Congress,” said Collyer. “They cannot be held personally responsible in monetary damages for conducting war.” The lawsuit sought unspecified damages.
“We believe the court reached the right result,” Justice Department spokesman Brian Fallon said.
Hina Shamsi, director of the ACLU National Security Project, called it a “deeply troubling decision that treats the government’s allegations as proof while refusing to allow those allegations to be tested in court.”
“The court’s view that it cannot provide a remedy for extrajudicial killings when the government claims to be at war, even far from any battlefield, is profoundly at odds with the Constitution,” said Shamsi, one of the attorneys who argued the case.
At oral arguments last July, the judge challenged the Obama administration’s position repeatedly, pointedly asking “where was the due process in this case?” for the now-dead US citizens targeted in the drone attacks. When an administration lawyer said there were checks in place, including reviews done by the executive branch, Collyer said “No, no, no, no, no,” declaring that “the executive is not an effective check on the executive” when it comes to protecting constitutional rights. But in Friday’s ruling, it was clear that the administration’s arguments had a strong impact on the judge, who was appointed by President George W. Bush.
The government argued that the issue is best left to Congress and the executive branch, not judges, and that courts have recognized that the defense of the nation should be left to those political branches.
Anwar al-Awlaki’s classification as a key leader raises fundamental questions regarding the conduct of armed conflict, Collyer’s 41-page opinion stated. The Constitution commits decision-making in this area to the president, as commander in chief, and to Congress, the judge said.
US-born al-Qaida leader al-Awlaki and Samir Khan, an al-Qaida propagandist, were killed in a drone strike in September 2011. Al-Awlaki’s 16-year-old son, Abdulrahman, was killed the following month.
The lawsuit was filed by Nasser al-Awlaki — Anwar’s father and the teen’s grandfather — and by Sarah Khan, Samir Khan’s mother
“What I am asking is simply for the government to account to a court its killings of my American son and grandson, and for the court to decide if those killings were lawful,” said Nasser al-Awlaki. “Like any parent or grandparent would, I want answers from the government when it decides to take life, but all I have got so far is secrecy and a refusal even to explain.”
Anwar al-Awlaki had been linked to the planning and execution of several attacks targeting US and Western interests, including a 2009 attempt on Christmas Day on a Detroit-bound airliner and a 2010 plot against cargo planes.
“The fact is that Anwar al-Awlaki was an active and exceedingly dangerous enemy of the United States, irrespective of his distance, location, and citizenship,” said Collyer. “As evidenced by his participation in the Christmas Day attack, Anwar al-Awlaki was able to persuade, direct, and wage war against the United States from his location in Yemen, without being present on an official battlefield or in a hot war zone.”
She said that the US government moved against al-Awlaki as authorized by the defendants and she said the officials acted in accordance with the Authorization for Use of Military Force, which was enacted by Congress after the attacks of Sept. 11, 2001.
Also impacting the outcome was the type of lawsuit, commonly known as a Bivens action, which seeks to hold liable individual officials as opposed to being a legal action against an entity. Bevens actions have a high legal hurdle to meet in order to survive.
“Allowing plaintiffs to bring a Bivens action against defendants would hinder their ability in the future to act decisively and without hesitation in defense of US interests,” Collyer said.
“Although it gave this court pause, a plaintiff’s US citizenship has not affected the analysis of Bivens special factors by the circuit courts,” she added.
“The Supreme Court has never suggested that citizenship matters to a claim under Bivens,” said Collyer’s opinion, quoting from a federal appeals court case.
The Obama administration argued that the lawsuit should be thrown out based on the political question doctrine, which excludes from judicial review controversies revolving around policy choices to be resolved by Congress or the executive branch.
Collyer disagreed, saying that the powers granted to the executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a US citizen of his life without due process and without any judicial review.
Copyright 2014 The Associated Press. All rights reserved.
Court: Improper for Judiciary to Decide Whether Killing US Citizens with Drones Violates Due Process Rights
Kevin Gosztola / Firedog Lake
(April 4, 2014) — A federal judge was unable to find no remedy in United States law for a claim that United States citizen’s due process rights were violated when they were targeted and killed by a drone. The case was dismissed because the judge determined the citizen had been properly designated a terrorist, posed a threat to US interests, and the judiciary should not interfere in the areas of “warmaking, national security and foreign relations.”
Essentially, this means the executive branch in the US government can claim the power to collect secret evidence as part of a secret review process and place a US citizen suspected of engaging in terrorist activities on a kill list.
The decision to proceed with an operation to kill that citizen can be provided to Congress. Provided that the executive branch offers some legal justification that is persuasive, the president is free to proceed with ordering the execution of this person and deprive him of due process rights he or she would typically enjoy, especially if they still lived in the US. It is not a judge’s place to challenge this act of killing.
The case was filed by the American Civil Liberties Union (ACLU) and Center for Constitutional Rights (CCR). It questioned the legality of drone strikes, which killed US citizen Anwar al-Awlaki, Samir Khan and Abdulrahman al-Awlaki, Anwar’s 16-year-old son. It was brought on behalf of Nasser al-Awlaki, the father of Anwar and grandfather of Abdulrahman.
Claims that their Fourth Amendment rights had been violated were alleged, however, Judge Rosemary Collyer dismissed these claims because “unmanned drones are functionally incapable of â€˜seizing’ a person; they are designed to kill, not capture.”
It was argued that their due process rights under the Fifth Amendment were violated. But, in order to have a claim, government officials had to knowingly and not “merely negligently” kill any of these citizens, according to the judge.
She found no evidence to support the fact that Khan or Abdulrahman had been targeted so the judge dismissed these claims, and the ease in which she was able to dismiss the claims is definitely bothersome.
The judge recognized in her decision that Anwar al-Awlaki had been “executed without charge, indictment or prosecution.” There was a “substantive due process claim” that government officials, who were defendants in the case, had been deliberately indifferent to “his constitutional right to life, both outside of armed conflict and at a time when he did not present a concrete, specific and imminent threat to the United States.”
“The Court does not opine that Anwar al-Awlaki was entitled to notice and a pre-deprivation hearing, or that his Estate was entitled to a post-deprivation hearing, or that the drone killing of Anwar al-Awlaki â€˜shocks the conscience.’ The Court merely holds that the Complaint states a “plausible” procedural and substantive due process claim on behalf of Anwar Al-Awlaki.”
The problem, however, was whether a cause of action could be pursued against government officials, such as former CIA director Leon Panetta, former Joint Special Operations Command (JSOC) Admiral William McRaven, JSOC Commander Lieutenant General Joseph Votel or former CIA director General David Petraeus for allegedly authorizing and directing the strike that killed Anwar al-Awlaki. The court decided no.
“No case has discussed precisely whether a plaintiff can proceed on a Bivens action that claims deprivation of life without due process based on the overseas killing by United States officials of a US citizen deemed to be an active enemy,” the court found. (Bivens was a case that created a precedent for bringing a case against federal government officials.)
“There are, however, analogous cases in which circuit courts have barred Bivens actions to remedy deprivations of liberty without due process arising from military detention and alleged abuse of US citizens.
Specifically, the DC Circuit, as well as the Fourth and Seventh Circuits, have decided that special factors — including separation of powers, national security, and the risk of interfering with military decisions — preclude the extension of a Bivens remedy to such cases.”
In other words, there have been cases where it was alleged that actions, which included torture, violated rights and victims were entitled to remedies, but they lost too. Victims did not win because judges maintained they did not have the power to second guess “warmaking” or “national defense powers” that the Constitution placed in the “hands of the executive and legislative branches.”
A US citizen and employee of an American-owned defense contracting firm, who worked as an Arabic translator, was detained at a US military facility near Baghdad. He was subjected to torture and after being released found he was now on watch lists that made it impossible to travel. But a remedy was not granted because remedies have never been extended in cases involving the military, intelligence or national security.
The government’s rationale is that if military officials knew they could be held accountable for detaining and torturing someone who was a US citizen it would get i the way of being able to make decisions without hesitation in “defense” of American “liberty and national interests.” And the same rationale is advanced by the government when it comes to executing US citizens suspected of terrorism without charge, indictment or prosecutionâ€”it would get in the way of decision-making to keep America safe.
“This court is not equipped to question, and does not make a finding concerning defendants’ actions in dealing with AQAP generally or Anwar al-Awlaki in particular.”
His father, Nasser al-Awlaki, reacted, “I am deeply disappointed by the judge’s decision and in the American justice system. What I am asking is simply for the government to account to a court its killings of my American son and grandson, and for the court to decide if those killings were lawful. Like any parent or grandparent would, I want answers from the government when it decides to take life, but all I have got so far is secrecy and a refusal even to explain.”
Maria Lahood, a CCR senior attorney, stated, “Judge Collyer effectively convicted Anwar Al-Awlaki posthumously based on the government’s own say-so, and found that the constitutional rights of 16-year-old Abdulrahman Al-Aulaqi and Samir Khan weren’t violated because the government didn’t target them.
It seems there’s no remedy if the government intended to kill you, and no remedy if it didn’t. This decision is a true travesty of justice for our constitutional democracy, and for all victims of the US government’s unlawful killings.”
And ACLU National Security Project Director Hina Shamsi, one of the attorneys who argued the case, stated, “This is a deeply troubling decision that treats the government’s allegations as proof while refusing to allow those allegations to be tested in court.”
“The court’s view that it cannot provide a remedy for extrajudicial killings when the government claims to be at war, even far from any battlefield, is profoundly at odds with the Constitution. It is precisely when individual liberties are under such grave threat that we need the courts to act to defend them. In holding that violations of US citizens’ right to life cannot be heard in a federal courtroom, the court abdicated its constitutional role,” Shamsi added.
Indeed, the judge found the government’s allegations or evidence to be extremely convincing.
“The fact is that Anwar Al-Aulaqi was an active and exceedingly dangerous enemyof the United States, irrespective of his distance, location, and citizenship,” Collyer explained. “As evidenced by his participation in the Christmas Day attack, Anwar Al-Awlaki was able to persuade, direct, and wage war against the United States from his location in Yemen, i.e., without being present on an official battlefield or in a “hot” war zone.
“Defendants, top military and intelligence officials, acted against Anwar Al-Awlaki, a notorious [al Qaeda in the Arabian Peninsula (AQAP)] leader, as authorized by the [Authorized Use of Military Force].Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the court into â€˜the heart of executive and military planning and deliberation.'” [She was quoting from Lebron v. Rumsfeld, which involved the military detention of US citizen Jose Padilla.]
Whether it is permissible to kill a US citizen, who allegedly poses a threat or not, is a military decision and not one for the courts was part of the ultimate conclusion.
The judge came to this conclusion after accepting the following as facts: the US is “engaged in armed conflict with AQAP,” “Anwar al-Awlaki posed a continuing, imminent threat to the United States,” it was “not feasible to capture him,” the “decision to target him with lethal force underwent rigorous legal and policy review and had the prior approval of congressional oversight committees.”
Indisputably, there is plenty of evidence that Anwar al-Awlaki had some involvement in terrorism, but future targeted US citizens may not be so clearly associated or involved with terrorist groups. What due process will they have to protect from being killed by their own government?
This is all acceptable to the judge because she found nothing wrong with justifying all of this with the AUMF. Thus, one can further conclude from this ruling that the executive branch can place the country on a permanent war footing and the judiciary will never believe it is in a position to challenge the deprivation of life or liberty when the government targets and kills citizens.
The White House can conduct an intra-branch process that effectively creates a secret body of law authorizing capital punishment by flying killer robot and, if any members of Congress in an oversight committee give what officials in the executive branch construe as approval, the person will receive a lethal injection of Hellfire missiles raining down upon them from the sky.
Read the full court decision here.
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