"How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but... judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"
That's just one of many intriguing questions raised -- but not answered -- by the D.C. District Court on Tuesday in its decision dismissing the case of Anwar al-Awlaki, a challenge to the government's authorization to kill a U.S. citizen allegedly tied to Al Qaeda overseas. Ultimately, the court won't answer any of these critical questions because it decided that, among other things, Al-Awlaki's father lacks standing to sue, since he's not directly harmed by the U.S. action.
Significantly, though, Judge John Bates did not dismiss the case on the merits. Instead, he went out of his way to write that the case raises important legal questions regarding whether the government can target its own citizen for death in a foreign country without so much as a hearing to determine that he's done anything wrong.
Anwar al-Awlaki is a dual U.S.-Yemeni citizen and Muslim cleric with alleged ties to al Qaeda. Known for his inflammatory statements calling for "jihad against the West," he was reportedly added to a U.S. hit list after the government came to believe that he provided instructions to Umar Farouk Abdulmutallab, the man accused of trying to set off a bomb on a flight bound for Detroit last Christmas.
Even though Tuesday's decision means the courts likely won't decide whether Awlaki is a lawful target, the questions raised by this case, brought by the ACLU and Center for Constitutional Rights, still cry out for answers.
"This is a unique and extraordinary case," wrote District Court Judge John Bates in his 83-page opinion, presenting "fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure."
Among the "stark" and "perplexing" questions raised are, according to Judge Bates:
"Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?"
"And how does the evolving [Al Qaeda in the Arabian Peninsula] relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?"
In particular, under what circumstances is the U.S. government allowed to target for death an individual suspected of participating in terrorism in a foreign country where we are not actively engaged in a war? Whether or not he's a U.S. citizen, what role does that person have to be playing to become a legitimate military target for the United States? And is it legitimate to kill people under the laws of war if they are part of an organization that did not exist when we declared war?
In March, State Department Legal Advisor Harold Koh said :
...[I]t is the considered view of this administration...that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war....As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks...
Although Koh assured the gathering at the American Society of International Law that the U.S. policy on targeted killing complies with international law requirements, the government has never actually provided enough information about its policy for the public to know if that's true.
For example, how high-level in Al Qaeda (or an affiliate) does the target have to be? What if the individual is providing "material support" to Al Qaeda, or soliciting new recruits; is that enough to land him on the U.S. hit list?
According to international law, in an armed conflict only someone "directly participating in hostilities" against the United States is a legitimate target for U.S. assassination. But the United States has neither said whether it is abiding by that principle in its targeting, nor how it defines "direct participation."
Koh also suggested in his speech that assassination could be lawful in "self-defense." But killing in self-defense is only legitimate if the target poses an imminent threat. How imminent is the threat from someone who's on a list of targets for months or even years on end? It may be, but the U.S. needs to explain how it makes that decision.
Of course in a war the U.S. doesn't have to give a hearing or trial to legitimate battlefield targets. But when the government appears to view the battlefield as extending around the world, the U.S. government must do more to assure its own citizens as well as its allies and potential enemies that it is not roaming the globe aiming to kill anyone who espouses anti-American sentiment or supports terrorists' efforts. Those suspected of conspiring or supporting terrorists can be arrested, interrogated and brought to justice under U.S. law. But they cannot simply be killed with no questions asked.
The U.S. government has just won the right to keep quiet about its targeted killing policy in the Awlaki case. But it's in the United States' own national interest to start providing some answers.
Follow Daphne Eviatar on Twitter: www.twitter.com/deviatar
Michael Brenner: Stealth Empire
Alan Dershowitz: The ACLU Demands "Killing Warrants"
Theo Padnos: Love and Healing for Muslim 20-Somethings: Anwar al-Awlaki's Moment
The person or persons (whether it be the President or someone else) who order that an American citizen who is alleged to be a terrorist should be assassinated without benefit of due process ... they themselves are guilty of being terrorists. These people need to be removed from office and/or jailed.
Right now we have government officials, media mouthpieces, and others ... calling for the assassination of Julian Assange. He has broken no laws here. I hope Julian asks that these people be arrested for threatening his life.
Am I missing anything?
This is what check and balance is all about. The purpose is to prevent any one from going off rogue, and to slow and eventually pull up any two going rogue in concert, as occurred when Lincoln suspended habeus corpus, with Congressional acceptance -- which may have been tacit, which may have set precedent for the mess that has developed today.
Today, war has not been declared. For this the "laws of war" do not apply in any situation. International law, as the laws of war, requires an an appropriate court to interpret where meanings and applications are matters of question.
For any individual party, or individual nation, to unilaterally define and interpret in application of law questions is to circumvent the judiciary machinery of the judiciary processes and judiciary system provided with the promulgation of the system of law.
The United States' obligation is to take its questions to the appropriate international and war courts to obtain definitions and determinations in regard to actions it wishes to engage in.
Democracy is rule by majority consensus. A lynch-mob is an example of nearly perfect pure democracy: There is only one vote against the lynching, the victim's.
The republican component controls the democratic, which is, by its nature, given to emotional decision and excess. Republicanism is the Golden Rule in government. In a republic each is responsible for each other's equal rights. This makes each sovereign within his or her own rights and responsible for his own and all others', too.
We have to begin asserting, or reasserting, our republican rights, the rights of ourselves the people as individuals and as collective enforcers for each individual, ourselves and each other. We have to assert our basic rights and demand common law and Constitution be respected.
And we have to deny the legality and any authority of any tyrannically asserted law or rule or regulation: If it is not in compliance with, or was not promulgated in compliance to common law and Constitutional authority, it is not law, whoever or however it was alternatively asserted.
We are going to have to become more aggressive in our assertions of our civil rights, as individuals and as The People: The non-aggressive methods employed in the past, which depend upon impartial judiciary authorities, ones to whom we can appeal for justice, have obviously been insufficient. In large part because the judiciary has proved not impartial.
http://www.youtube.com/watch?v=QcvjoWOwnn4
http://www.vagabundia.net/dictator.html
The way of life can be free and beautiful, but we have lost the way. Greed has poisoned men's souls - has barricaded the world with hate - has goose-stepped us into misery and bloodshed. We have developed speed, but we have shut ourselves in. Machinery that gives abundance has left us in want. Our knowledge has made us cynical; our cleverness, hard and unkind. We think too much and feel too little. More than machinery we need humanity. More than cleverness, we need kindness and gentleness. Without these qualities, life will be violent and all will be lost.
Soldiers! Don't give yourselves to brutes - men who despise you and enslave you - who regiment your lives - tell you what to do - what to think and what to feel! Who drill you - diet you - treat you like cattle, use you as cannon fodder. Don't give yourselves to these unnatural men - machine men with machine minds and machine hearts! You are not machines! You are not cattle! You are men! You have the love of humanity in your hearts. You don't hate, only the unloved hate - the unloved and the unnatural!
Let's see - the US government has the the right to murder a U.S. citizen for any reason, anywhere in the world with no accountability.
The U.S. Government is required to to get Court permission to eavesdrop electronically on U.S. citizens.
AAAAaaaaaRRRrrrrGGggggHhhh
http://www.aclu.org/technology-and-liberty/unlikely-suspects
http://www.usatoday.com/travel/news/2005-08-15-nofly-babies_x.htm
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - - that's all."
In the race between secrecy and truth, it seems inevitable that truth will always win.
~ Rupert Murdoch, 1958, owner/editor of Adelaide’s The News