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Obama Administration Invokes “State Secrets” Defense In Assassination Lawsuit

The Obama Administration has invoked a controversial legal doctrine in an effort to dismiss a lawsuit over it’s announced policy marking Anwar al-Aulaqi as a target for assassination:

The Obama administration urged a federal judge early Saturday to dismiss a lawsuit over its targeting of a U.S. citizen for killing overseas, saying that the case would reveal state secrets.

The U.S.-born citizen, Anwar al-Aulaqi, is a cleric now believed to be in Yemen. Federal authorities allege that he is leading a branch of al-Qaeda there.

Government lawyers called the state-secrets argument a last resort to toss out the case, and it seems likely to revive a debate over the reach of a president’s powers in the global war against al-Qaeda.

Civil liberties groups sued the U.S. government on behalf of Aulaqi’s father, arguing that the CIA and the Joint Special Operations Command’s placement of Aulaqi on a capture-or-kill list of suspected terrorists – outside a war zone and absent an imminent threat – amounted to an extrajudicial execution order against a U.S. citizen. They asked a U.S. district court in Washington to block the targeting.

In response, Justice Department spokesman Matthew Miller said that the groups are asking “a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action – all on behalf of a leader of a foreign terrorist organization.”

Miller added, “If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions.”

In a statement, lawyers for Nasser al-Aulaqi condemned the government’s request to dismiss the case without debating its merits, saying that judicial review of the pursuit of targets far from the battlefield of Afghanistan is vital.

“The idea that courts should have no role whatsoever in determining the criteria by which the executive branch can kill its own citizens is unacceptable in a democracy,” the American Civil Liberties Union and Center for Constitutional Rights said.

Not surprisingly, Glenn Greenwald is not pleased:

What’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

Greenwald’s sentiments were echoed earlier this year by Kevin Williamson at National Review, who was one of the few voices on the right who asked that people stop and think about this for a second:

I hate to play the squish, but am I the only one who is just a little bit queasy over the fact that the president of the United States is authorizing the assassination of American citizens? Andy writes that this is “obviously the right call.” I might be persuaded that this is, in fact, the right call. But obviously? No hesitation there? It seems to me that the fact of U.S. citizenship ought to be a bright line on the political map.

Surely there has to be some operational constraint on the executive when it comes to the killing of U.S. citizens. It is not impossible to imagine a president who, for instance, sincerely believes that Andy McCarthy is undermining the Justice Department’s ability to prosecute the war on terror on the legal front. A government that can kill its citizens can shut them up, no? I ask this not as a legal question, but as a moral and political question: How is it that a government that can assassinate Citizen Awlaki is unable to censor Citizen McCarthy, or drop him in an oubliette? Practically every journalist of any consequence in Washington has illegally handled a piece of classified information. Can the president have them assassinated in the name of national security? Under the Awlaki standard, why not?

Odious as Awlaki is, this seems to me to be setting an awful and reckless precedent.

Indeed it does. The idea that any President can decide, essentially on his own, that an American citizen should be subject to an order of assassination without any due process is one that should concern everyone. Certainly, there are situations where killing an American citizens would be permissible — stopping someone from committing an imminent terrorist attack and death on the battlefield are two instances that come to mind. However, this seems to me to go far beyond that situation and essentially grants to the Executive Branch the unchecked power to sign death warrants when the President believes it to be necessary for national security. That’s so far beyond what the broad outlines of Article II of the Constitution intended the Presidency to be that it arguably creates an entirely new, and far different, institution that exists outside the law.

Greenwald leaves us with the walk-away question:

If the President has the power to order American citizens killed with no due process, and to do so in such complete secrecy that no courts can even review his decisions, then what doesn’t he have the power to do?

Good question.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Idiot says:

    Greenwald & Co. should look in the mirror and ask “who is the rube?” Maybe, just maybe, he and his friends will figure it out.

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  2. James says:

    Omissions of Substantive Content, this could fall under the title of what if, any opinion on the Budget lack there of , Ethics Committee work, Cap and Trade, John the clown Colbert, they (Royalty) fiddle while America melts from lack of Constitutional Leadership.

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  3. Wayne says:

    I see no problem with putting Anwar al-Aulaqi on that list. Being a U.S. citizen doesn’t mean the U.S. law applies to you wherever you are in the world and that goes both ways. You can’t be prosecuted for doing drugs in Amsterdam and you can’t expect Miranda rights if you are the head of a terrorist group in some foreign land.

    Yes it is scary that amount of power the President has but unfortunately it is needed. For example the fact that one person can launch a nuclear strike on his own should make anyone nervous but is needed in the real world. That is why we need to be careful who we elect.

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  4. PD Shaw says:

    I don’t believe civilian courts can “take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action – all on behalf of a leader of a foreign terrorist organization.” I believe the Obama administration is correct, the lawsuit should be tossed.

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  5. Ben says:

    PD, you have to be kidding me. What could stop Obama from ordering the execution an American citizen here in American? How would we even ever know? Under your analysis, we just have to take the administration’s word on it. The fact that this is even related to “an ongoing military action” is something we have to take their word on. We’ll never actually know any of the details, because they’re secret.

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  6. Zelsdorf Ragshaft III says:

    In what reading of the Constitution can if be found the President of the United States has the power to deny an American citizen due process? I would say the President can order his capture but to order a citizen assinated is extra legal. Maybe January a Republican congress can take up this issue.

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  7. Wayne says:

    Re “What could stop Obama from ordering the execution an American citizen here in American?”

    Not much. Perhaps the conscious of those he gave the order to if the order were way out of line like killing his political opponent. Congress could remove him from office if they thought it was too much out of line.

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  8. PD Shaw says:

    Why Ben, do you think you might be on the assassination list?

    How about this hypo. Let’s assume OBL is an American citizen because of some time spent here studying in college. Can the President order OBL to be captured dead or alive? What practical rights does a court in Maryland to stop it?

    There is a practical difference here. Congress declared war on the perpetrators of 9/11 and those who support them. Anwar al-Aulaqi doesn’t fit that definition neatly, but those opposed to the wars have advocated something closer to non-military assassins as better than costly, lengthy engagements. If one hand is held, the other must be used.

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  9. PD Shaw says:

    And to be clear, let the people complain all they want about this President’s or any President’s strategies and how the comport with American values. But it’s unfair and wrong to expect the judge that just got done evaluating Johnny’s drug misdemeanor to pass judgment on foreign policy.

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  10. Franklin says:

    PD- Fair enough on the civilian court argument. But don’t you think there should be someone that reviews this? This is my same issue with warrantless wiretaps. If there’s currently no judges capable of handing out warrants for things like this (state secrets), there should be. Otherwise there’s no balance of power. I would have hated to have someone like Nixon with this kind of power.

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  11. TG Chicago says:

    How about this hypo. Let’s assume OBL is an American citizen because of some time spent here studying in college. Can the President order OBL to be captured dead or alive?

    Not unilaterally, no.

    What practical rights does a court in Maryland to stop it?

    The fact that OBL has not been convicted or even charged with any crime.

    Really, this is quite simple. What law has Anwar al-Aulaqi been proven to have broken? None. Thus, he can’t be punished because in America, we assume innocence.

    If you think we should change the system so that we no longer assume innocence, make that argument. Otherwise, this couldn’t be clearer.

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  12. tom p says:

    “But it’s unfair and wrong to expect the judge that just got done evaluating Johnny’s drug misdemeanor to pass judgment on foreign policy.”

    The judge is not passing judgement on American foreign policy, he is being asked if the President can order an American to be killed without due process of any kind. This isn’t even a close call.

    In this country, if a person is convicted of murder in a court of law, we don’t kill them the next day, we give them the right of appeal, to the extent that it can be years before they actually face execution. Why? To make absolutely certain sure that none of their rights were violated.

    If the President can order a man killed, and it can not be adjudicated because of the very nebulous legal justification of “state secrets”, we don’t have a Constitution.

    What we have is some very old toilet paper.

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  13. tom p says:

    “Maybe January a Republican congress can take up this issue.”

    Until a Republican President gets into office… at which point they will develope a miraculous case of amnesia.

    Maybe if the Dems had had the balls to investigate some of Bush’s more egregous “unitary executive” excesses back in 2006, we wouldn’t be facing this now. I doubt it, but maybe, just maybe the electorate would have paid attention.

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  14. Brummagem Joe says:

    Unfortunately, with far right partisans buried not far below all the expressions of belief in the sanctity of the constitution, American exceptionalism, etc is a complete disregard for legality and morality if it happens to get in the way of their personal prejudices. I agree with you totally on this one Doug, it’s appalling. And it’s staggering that the Obama administration is advancing such a doctrine.

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  15. Ben says:

    PD, justify it however you want, but what would you call a system wherein there exists the ability of an executive to murder his own citizens based on no other justification than his own say-so, and the lack of any ability for any other body to oversee this or to even review it in retrospect, based on the executive’s own decision that it is secret? I know what I would call it.

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  16. c.red says:

    There are two separate questions here – “is this moral?” and “is this legal?”

    The easier of the two is possibily “is this legal?”. On the face of it, it would seem it violates the constitution, but there is at least some precedent for it in the famous ” wanted dead or alive” rewards of the 19th century (that did carry through the 20th). Those warrants were issued by the Federal and various State Governments at both Executive (Territorial Givernors and State Governors) and Judiciary (Territorial Judges) levels, and generally were considered to extend anywhere (including out of the issuing juridiction). So far, i haven’t found the mechanism used to justify them (if there was any) and I don’t know if the president/attorney general ever issued any. I’ve never really thought about those before and there doesn’t seem to be a whole lot of information on them.

    “Is it moral?”, also at first glance seems an easy no. But if it taken that the subject has stated their intent and has the means to commit a crime (where lives will be lost) how would this be different from a sniper shooting someone that has taken hostages and is threatening to kill them?

    I can’t say off the top of my head that I’m for or that I’m against this, but this is a lot greyer than most people seem to want to make it out to be and, honestly, this isn’t something that needs to be decided by political ideologies.

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  17. PD Shaw says:

    Obama is claiming he was authorized to use military force against al-Qaeda. Military means killing. Let’s not pretend that this is some assassination program the President put together out of whole cloth.

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  18. TG Chicago says:

    C.red:

    Can you show me where Anwar al-Aulaqi has “stated [his] intent and has the means to commit a crime?” Clearly anything he has said is a far cry from the imminent danger posed by the sniper situation you put forth.

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  19. Wayne says:

    Brum
    You are reading stuff into the Constitution that isn’t there.

    This idea of innocent until proven guilty extends everywhere in the Universe is a mistake. Killing a U.S. soldier or civilian isn’t even against U.S. law if it happens on foreign soil. So even if we did capture them with solid proof we couldn’t effectively prosecute them in our civilian court. We would have to “ask” the foreign country where it happens to prosecute them.

    Does this mean the U.S. and the President are powerless to take actions against them? Of course they can take action and if it is a significant threat they should. A thief in the Philippines killing a American is one thing. A whole group or country intent on doing great harm to the U.S. is another.

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  20. PD Shaw says:

    If a U.S. army soldier turns and flees a battle, is his commanding officer authorized to shoot and kill him? Last I knew the answer was yes.

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  21. Alex Knapp says:

    Wayne,

    Killing a U.S. soldier or civilian isn’t even against U.S. law if it happens on foreign soil. So even if we did capture them with solid proof we couldn’t effectively prosecute them in our civilian court.

    You are mistaken about the law in this situation.

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  22. Ben says:

    PD – No. Death is one of the possible punishments for desertion during wartime, but only after a court martial. And that punishment has only been given out for a deserter once in the last 150 years. And that was after a full court martial before a Judge Advocate.

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  23. c.red says:

    On the moral side I’m not making a precise arguement; that is for the legal oriented side of the question.

    In this case, I believe we can take his association with Al-Quaeda to be “means and intent”. I don’t think any reasonable person would accept that anyone joining them wouldn’t know of their stated goal and history against Americains. If you feel that is inadequate, I look forward to hearing your argument.

    As for the “imminent” idea, I will admit my scenario a bit of a stretch on my part, but here is my reasoning: It is necessary to shoot the perpetrator in that situation (I’ll leave acceptable up to the observer) because they cannot be apprehended before they potentially harm the hostage. In this specific case of Anwar al-Aulaqi, we do not have the ability to apprehend him before committing a terrorist act by virtue of the fact that we don’t know where he is and theoretically would not be able to get him without unacceptable loss of life. Imminent has little to do with it, it is entirely a matter of prevention. I am certainly open to hearing the other side.

    My question is: why did anyone feel it necessary to issue this order at all? If Anwar al-Aulaqi is shot in combat in Afghanistan or in Pakistan either by Americans or locals, or hit by a drone no one would bat an eye. My thought is this could be legal cover for some soldier shooting an American citizen and not having it be murder (criminal and/or civil). (or an international incident, if say an Afghani or Pakistani soldier does so.)

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  24. PD Shaw says:

    I’m not talking just about desertion; I’m talking about soldiers breaking ranks under hostile fire and threatening a panic in which other soldiers are going to get killed.

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  25. PD Shaw says:

    c.red: He’s in Yemen. Obama is essentially doing what many pundits and IIRC the 9/11 Comm’n said should have done before 9/11. Target al-Qaeda wherever they can be found.

    Yemen is in the middle of a cease fire in a civil war. There is no functioning government capable of extraditing al-Qaeda. The U.S. could invade Yemen, but I believe the calculation is that killing key members of the al-Qaeda leadership in Yemen would be sufficient to achieve the objective, and would be less costly in money and lives than invasion.

    We can ask the question posed by the movie Saving Private Ryan, how many lives is it worth to provide a little bit of justice and fairness in a war?

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  26. Brummagem Joe says:

    Wayne says:
    Tuesday, September 28, 2010 at 12:40
    Brum
    “You are reading stuff into the Constitution that isn’t there.”

    Really?

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  27. Wayne says:

    PD
    A soldier is a special case. A soldier’s action falls under the UMCJ but foreign national actions do not unless there are special arrangements made beforehand.

    Alex
    Can you name an instance that any foreign national was convicted of murder in the U.S. courts for killing someone on foreign soil unless special arrangements like the above mention one were made?

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  28. Wayne says:

    Brum
    Yes Really!

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  29. TG Chicago says:

    In this case, I believe we can take his association with Al-Quaeda to be “means and intent”.

    Seems to me that freedom of association is an important American right.

    And I don’t see how merely saying you are allied with Al-Qaeda is tantamount to having the means to attack someone. If I were to claim an association with Al-Qaeda, would I suddenly have means at my disposal that I did not previously have?

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