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Title: ACLU objects to killing of al Qaeda leader
Source: The Hill
URL Source: http://thehill.com/blogs/blog-brief ... -to-killing-of-al-qaeda-leader
Published: Sep 30, 2011
Author: Erik Wasson
Post Date: 2011-09-30 12:40:46 by Sebastian
Keywords: None
Views: 126031
Comments: 179

The American Civil Liberties Union has objected to the killing of the U.S.-born Muslim cleric Anwar al-Awlaki in Yemen by U.S. forces.

Awlaki was a U.S. citizen, and the ACLU said President Obama does not have the authority to kill an American without due process of law. The White House confirmed the cleric was killed by a U.S. drone attack.

“The targeted killing program violates both U.S. and international law,” ACLU Deputy Legal Director Jameel Jaffer said. “As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts.”

The ACLU said the government only has the authority to kill Americans when a threat is imminent.

“It is a mistake to invest the president — any president — with the unreviewable power to kill any American whom he deems to present a threat to the country,” Jaffer said.

Ben Wizner, litigation director of the ACLU’s National Security Project, added:

“If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state.”

Obama’s actions also garnered criticism from GOP presidential candidate Rep. Ron Paul (Texas).

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Begin Trace Mode for Comment # 22.

#4. To: Sebastian (#0) (Edited)

President Obama does not have the authority to kill an American without due process of law.

It's called first degree murder.

I know that a lot of people are out thumping their chests today, but without any evidence to the contrary, the only thing we know for sure is that al-Awlaki was posting political opinions on a website.

Posting political opinions on a web site is not against the law. Remember, that is what we do here on LF.

Also remember, that the very first thing Obama's Department of Homeland Security did was issue a report about homegrown, "right-wing extremists".

Tie these two together, along with Obama's constant demonetization of his opponents, and it points to a very bad place.

jwpegler  posted on  2011-09-30   13:30:44 ET  Reply   Untrace   Trace   Private Reply  


#5. To: jwpegler (#4)

It's called first degree murder.

Nope, it's called war. Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

See: http://volokh.com/2011/09/30/anwar-al-aulaqi-apparently-killed-by-drone-in-yemen/

and:

http://www.lawfareblog.com/2011/09/al-awlaki-as-an-operational-leader-located-in-a-place-where-capture-was-not-possible/

go65  posted on  2011-09-30   15:09:03 ET  Reply   Untrace   Trace   Private Reply  


#9. To: go65, jwpegler (#5) (Edited)

Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

Can you please identify the U.S. law to which you refer?

nolu chan  posted on  2011-09-30   20:25:51 ET  Reply   Untrace   Trace   Private Reply  


#22. To: nolu chan (#9)

Can you please identify the U.S. law to which you refer?

I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......"

That would be an opinion of the court in case law, would it not? Does that mean the political question doctrine means the Executive Branch can get away with killing a US citizen without due process and not be held accountable except by the ballot?

Sebastian  posted on  2011-10-01   21:27:22 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 22.

#24. To: Sebastian, go65 (#22)

[go65 #5] Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

[Sebastien #22I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......"

That would be an opinion of the court in case law, would it not?

El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010)

I believe el-Shifa would not be an opinion of the court in case law, at least not in the sense of deciding anything about the issue other than that the court could not decide it or render any opinion on it, at least not in the sense you appear to convey.

It is the same as the al-Aulaqi case. The court stated it did not have jurisdiction to hear the case. It's only "opinion" was that it was asked to answer a non-justiciable political question. The court lacked subject matter jurisdiction. The case was dismissed. The court did not decide the issue of whether the President has the authority to atttack enemy combatants outside the U.S., regardless of their citizenship/country of origin. It decided that the Plaintiff's question was not proper for the court to decide.

Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

I would have to question this claim of go65 on a few points.

I am unaware of current U.S. law that affirmatively grants such authority as that claimed. I do not know what law was being considered.

The use of the term enemy combatants appears imprecise. I believe the more appropriate term would be unlawful combatants. In this context, I would question whether whether al-Aulaqi fits the description of any sort of combatant.

The CIA action appears to be the targeted assassination of an American citizen. Assassination appears to be prohibited by EO12333 of 1981 (Reagan), Section 2.11.

- - -

Doc 1 - Al-Aulaqi v Obama, DCDC 10-1469, COMPLAINT Re Targeted Killing

- - -

Al-Aulaqi v Obama, USDC DCDC 1-10-cv-01469, Doc 31, OPINION (07dec2010)

At 4: "Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum."

The reference to a non-judicial forum is to a Legislative forum, i.e., Congress.

= = = = =

el-Shifa OPINION of the Court at 6-7:

The district court granted the government’s motion to dismiss the complaint for lack of subject-matter jurisdiction, see FED. R. CIV. P. 12(b)(1), concluding that sovereign immunity barred all of the plaintiffs’ claims. See El-Shifa, 402 F. Supp. 2d at 270–73. The court also noted that the complaint “likely present[ed] a nonjusticiable political question.” Id. at 276. The plaintiffs filed a motion to alter the judgment with respect to their claims for equitable relief, which the district court denied. See El-Shifa Pharm. Indus. Co. v. United States, No. 01-731, 2007 WL 950082 (D.D.C. Mar. 28, 2007). The plaintiffs appealed, challenging only the dismissal of their claims alleging a violation of the law of nations and defamation. The plaintiffs have abandoned any request for monetary relief, but still seek a declaration that the government’s failure to compensate them for the destruction of the plant violated customary international law, a declaration that statements government officials made about them were defamatory, and an injunction requiring the government to retract those statements. A divided panel of this court affirmed the district court, holding that these claims are barred by the political question doctrine. See El-Shifa Pharm. Indus. Co. v. United States, 559 F.3d 578 (D.C. Cir. 2009). We vacated the panel’s judgment and ordered rehearing en banc. See El-Shifa Pharm. Indus. Co. v. United States, 330 F. App’x 200 (D.C. Cir. 2009).

el-Shifa OPINION of the Court at 27:

Our concurring colleagues charge the court with “sub silentio expand[ing] executive power.” Concurring Op. of Judge Ginsburg at 3 (quoting Concurring Op. of Judge Kavanaugh at 11). To the contrary, it is they who would work a sub silentio expansion. By asserting the authority to decide questions the Constitution reserves to Congress and the Executive, some would expand judicial power at the expense of the democratically elected branches. And by stretching beyond all precedent the limited category of claims so frivolous as not to involve a federal question, all would permit courts to decide the merits of disputes under the guise of a jurisdictional holding while sidestepping obstacles that are truly jurisdictional.

Straightforward application of our precedent makes clear that the plaintiffs face such an obstacle here. Under the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of retaliatory military action taken by the United States. Despite their efforts to characterize the case differently, that is just what the plaintiffs have asked us to do. The district court’s dismissal of their claims is

Affirmed.

Docket Report - el-Shifa v USA, USCA DC Cir 07-1514, Docketed 31may2007 Termed 08jun2010

- - -

el-Shifa v USA, USCA DC Cir 07-5174, OPINION (8jun2010) (political question)

- - -

Here are some documents that touch on the topic.

  • Geneva Convention Relative to the Treatment of Prisoners of War

  • Military Commissions Act of 2006

  • Authorization for Use of Military Force (AUMF) of 2001

  • Military Order - Detention, Treatment, And Trial of Certain Non-Citizens in the War Against Terrorism, (13nov2001) President GW Bush

  • The WAR POWERS Resolution of 1973

  • EO 12333 (4dec1981) US Intelligence Activities as Amended by EO 13284 (2003), 13355 (2004) and 13470 (2008)

- - -

Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva Convention III)

- - -

Military Commissions Act of 2006, S3930

- - -

Authorization for Use of Military Force (AUMF), 115 Stat 224; PL 107-40; SJ Res 18sep2001

- - -

Military Order - Detention, Treatment, And Trial of Certain Non-Citizens in the War Against Terrorism, (13n...

- - -

The WAR POWERS Resolution of 1973 - Text and Records From Congress

- - -

EO 12333 (4dec1981) US Intelligence Activities as Amended by EO 13284 (2003), 13355 (2004) and 13470 (2008)

Page 14, paragraph 2.11:

2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.

- - -

nolu chan  posted on  2011-10-04 21:05:48 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 22.

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