[Peace-discuss] Court: Obama may kill whom he wants

[C. G. Estabrook]

[The question of whether this is an impeachable offense is not even 
interesting.  Imagine what Madison - or even Hamilton or Jay - would have said 
about it.  See, e.g., /Federalist #51/, where Madison argues that, because of 
the division of power, a "double security arises to the rights of the people. 
The governments will control each other, at the same time that each will be 
controlled by itself."  Right.  --CGE]

Judge Dismisses Challenge to Targeted Killing
By CHARLIE SAVAGE
Published: December 7, 2010

WASHINGTON --- A federal judge threw out a lawsuit on Tuesday that sought to 
block the American government from trying to kill Anwar al-Awlaki, a United 
States citizen and Muslim cleric accused of playing a significant role in Al 
Qaeda's branch in Yemen.

The ruling clears the way for the Obama administration to continue to try to 
kill Mr. Awlaki and represents a victory in its efforts to shield from judicial 
review one of its most striking counter-terrorism policies.

The court not only rejected the lawsuit on the grounds that Mr. Awlaki's father 
had no standing to file it on behalf of his son, but held that decisions to 
mount targeted killings overseas are a "political question" for executive 
officials to make --- not judges.

In an 83-page opinion, Judge John Bates of the District of Columbia district 
court acknowledged that the case raised "stark, and perplexing, questions" --- 
including whether the president could "order the assassination of a U.S. citizen 
without first affording him any form of judicial process whatsoever, based the 
mere assertion that he is a dangerous member of a terrorist organization."

But even though the "legal and policy questions posed by this case are 
controversial and of great public interest," he wrote, they would have to be 
resolved on another day or outside of the courts, since this case had to be 
dismissed at the onset.

The Justice Department had no immediate comment on the ruling. But Jameel 
Jaffer, a lawyer for the American Civil Liberties Union who helped represent Mr. 
Awlaki's father, Nasser al-Awlaki, in the matter, called the decision "a 
profound mistake" that he said would dangerously expand presidential powers.

"If the court's ruling is correct, the government has unreviewable authority to 
carry out the targeted killing of any American, anywhere, whom the president 
deems to be a threat to the nation," Mr. Jaffer said. "It would be difficult to 
conceive of a proposition more inconsistent with the Constitution, or more 
dangerous to American liberty."

Judge Bates rejected the notion that his ruling amounting to holding that the 
executive possesses "unreviewable authority to order the assassination of any 
American whom he labels an enemy of the state." His ruling emphasized that it 
was limited to the circumstances of Mr. Awlaki, whom the intelligence community 
has said is engaged in specific operational planning of attacks against the 
United States.

"The court only concludes that it lacks capacity to determine whether a specific 
individual in hiding overseas, whom the director of national intelligence has 
stated is an 'operational member' " of Al Qaeda's Yemen branch, Judge Bates 
said, "presents such a threat to national security that the United States may 
authorize the use of lethal force against him." Robert Chesney, a University of 
Texas law professor who specializes in national security law, said the limits of 
the theory articulated by Judge Bates would be a matter of hot dispute.

"The slippery slope is obviously the concern here," Mr. Chesney said. "Judge 
Bates is at pains not to decide this question for other circumstances. But the 
question remains, what else besides this fact pattern would enable the 
government to have the same result --- no judicial involvement in a 
targeted-killing decision?"

The A.C.L.U., along with the Center for Constitutional Rights, brought the 
lawsuit on behalf of Mr. Awlaki's father last summer. It first had to receive 
permission to represent Nasser al-Awlaki from the Treasury Department, which has 
labeled Anwar al-Awlaki a "specially designated global terrorist."

Mr. Awlaki, who was born in New Mexico in 1971, moved to Yemen in 2004. He has 
made many videos and published many writings on the Internet calling for Muslims 
to attack the United States.

Within the last year, government officials contend, he has evolved from being a 
mere propagandist to playing an "operational role" in specific attempted 
attacks. Among other things, he is accused of directing Umar Farouk 
Abdulmutallab, the Nigerian man who attempted to blow up a Detroit-bound 
airliner on Dec. 25, 2009.

http://www.nytimes.com/2010/12/08/world/middleeast/08killing.html?nl=us&emc=politicsemailema1
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