April 24, 2014
In a victory for transparency, opponents of the President’s veil of secrecy over drone killings has been partially lifted by the U.S. Second Circuit Court of Appeal’s opinion filed on Monday in New York Times v. Departments of Justice (DOJ), Defense (DoD), and the CIA (Case Nos. 13-422 and 13-445).
Watch Kimberly’s San Diego 6 News segment here
The suit contends the Offices of General Counsel for Defense and Justice issued confidential opinion letters authorizing the use of drones to kill suspected terrorists in foreign countries, including Americans like Al Awlaki, a self-proclaimed propagandist for Al Qaeda in the Arabian Peninsula and, Samir Khan who was riding in the same vehicle. Al Awlaki and Khan were killed by a drone strike in Yemen in October 2011. A couple weeks later, Al Awlaki’s 16-year old son and others were killed in another strike that was described as collateral damage from a near miss on a different suspected terrorist.
The three-judge panel of the Second Circuit ruled the government had partially waived its right to assert national security as a defense to producing the DoD memorandum as the President, Vice-President, Attorney General, and CIA Director had all described the opinions as the legal justification for the drone killings as part of “… an extensive public relations campaign…” A DOJ White Paper entitled “Lawfulness of a Lethal Operation Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or Associated Force” dated November 8, 2011 (ironically after the event) was leaked to NBC News and officially released on February 4, 2013.
While the court did not rule on the legality of the drone program itself, it stated the defense asserted by DoD and CIA did not meet the judicial standards for secrecy due to government disclosures and ordered the submission of the memoranda and related documents to the U.S. District Court for a confidential review to determine what information should be revealed.
It is unclear whether this Second Circuit opinion will be confirmed by the entire Second Circuit Court and whether subsequent disclosures will have any effect on a recent U.S. District Court in DC ruling in 2014 wherein the court refused to allow a case filed by Al Awlaki’s representatives from proceeding to trial against the U.S. government contending senior U.S. officials cannot be personally liable for conducting war (Case No. 12-1192).
Have courts ignored presidential overreach?
Is America really giving President Obama the authority to be judge and executioner? According to U.S. District Judge Rosemary Collyer, President Obama is well within his executive authority to order the death of American’s deemed a national security threat.
The American Civil Liberty Union (ACLU) contends; “In Al-Aulaqi v. Panetta (sometimes called Al-Awlaki v. Panetta) the ACLU and CCR charge that the U.S. government’s killings of U.S. citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman Al-Aulaqi in Yemen in 2011 violated the Constitution’s fundamental guarantee against the deprivation of life without due process of law. The killings were part of a broader program of ‘targeted killing’ by the United States outside the context of armed conflict. The program is based on vague legal standards, a closed executive decision-making process, and evidence never presented to the courts, even after the killing.
Since 2002, and routinely since 2009, the U.S. government has carried out deliberate and premeditated killings of suspected terrorists overseas. In some cases, including that of Anwar Al-Aulaqi, the targets were placed on ‘kill lists’ maintained by the CIA and the Pentagon. According to news accounts, the targeted killing program has expanded to include “signature strikes” in which the government does not know the identity of individuals, but targets them based on “patterns” of behavior that have never been made public. The New York Times has reported that the government counts all military-age males in a strike zone as combatants unless there is explicit intelligence posthumously proving them innocent.”
Under the Obama administration the targeted kill lists (TKLs) have resulted in thousands of deaths, including civilians. Many of the drone strikes take place outside the context of armed conflict zones in countries like Yemen, Somalia, Pakistan, Sudan, and the Philippines.
Civil liberty organizations point out that the TKLs rely on “vague legal standards, a closed executive process, and evidence never presented to the courts.” Perhaps more importantly the assassinations violate fundamental rights afforded to all Americans, including the right not to be deprived of life without due process of law.
Nasser Al-Aulaqi, Anwar’s father, told the Center for Constitutional Rights, “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.”
CCR lead attorney, Maria LaHood, said Judge Collyer’s was concerning. “Judge Collyer effectively convicted Anwar Al-Aulaqi 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 U.S. government’s unlawful killings. The judge was appointed by George W Bush and has served on the controversial secretive Foreign Intelligence Surveillance (FISA) Court that allows National Intelligence Agency (NSA) to spy on Americans.”
A State Department official also weighed in on the recent court decision concerning Al-Awlaki. “The revocation of a passport is the cancellation of the document and does not affect the citizenship status of the bearer. Generally, U.S. citizens overseas who have their passports revoked may request and obtain a limited validity passport good only for direct return to the U.S.
Anwar Nasser Aulaqi’s passport was revoked on March 25, 2011 pursuant to 22 CFR 51.60(c)(4) and 22 CFR 51.62(a)(1) which read together state that a passport may be revoked when the Secretary determines that the bearer’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”
The question then becomes is, did Anwar Al-Aulaqi represent an imminent threat?
ACLU National Security Project Director Hina Shamsi says no. “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 U.S. citizens’ right to life cannot be heard in a federal courtroom, the court abdicated its constitutional role.”
Another question left unanswered is how does one get on the TKL list in the first place? And is the only way off death? The answer may be found in four Justice Department secret memos that define and justify the killing U.S. citizens.
The ACLU, along with the New York Times has filed lawsuits against the Obama administration in an effort to obtain the Justice Department’s memos that justify the drone strikes against the U.S. citizens.
It’s hard to imagine President Richard Nixon shutting down further investigations into Watergate by simply calling “national security.”
Stay tuned – these cases are bound to elevate the debate over the legality of the President’s Target Kill List, the use of drone strikes outside a declared war zone, the use of national security claims as a bar to the American peoples’ right to know what their government is doing, and the relationship of the courts’ Article III powers over the legislative and executive branches of government.
The CIA declined to comment on its targeted kill lists.
Previous Drone Strike Story: http://www.examiner.com/article/we-ve-been-droned-are-kill-lists-lawful-and-prudent-1
The KD Report: thekdreport.com
For more Libya stories: http://www.examiner.com/article/barack-you-re-no-ronald-reagan-and-benghazi-is-proof
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