Later On

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Lawsuit over assassinations

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Charlie Savage had an interesting article in the NY Times on 18 July that I just spotted:

Relatives of three American citizens killed in drone strikes in Yemen last year filed a wrongful-death lawsuit against four senior national security officials on Wednesday. The suit, in the Federal District Court here, opened a new chapter in the legal wrangling over the Obama administration’s use of drones in pursuit of terrorism suspects away from traditional “hot” battlefields like Afghanistan.

The first strike, on Sept. 30, killed a group of people including Anwar al-Awlaki, a radical Muslim cleric who was born in New Mexico, and Samir Khan, a naturalized American citizen who lived at times in Queens, Long Island and North Carolina. The second, on Oct. 14, killed a group of people including Mr. Awlaki’s 16-year-old son, Abdulrahman al-Awlaki, who was born in Colorado.

Accused in the suit of authorizing and directing the strikes are Leon E. Panetta, the secretary of defense; David H. Petraeus, the director of the C.I.A.; and two senior commanders of the military’s Special Operations forces, Adm. William H. McRaven of the Navy and Lt. Gen. Joseph L. Votel of the Army.

“The killings violated fundamental rights afforded to all U.S. citizens, including the right not to be deprived of life without due process of law,” the complaint says.

Press officials with the C.I.A., the Pentagon and the Justice Department declined to comment.

The lawsuit, which seeks unspecified damages, was filed by Nasser al-Awlaki, who was Anwar’s father and Abdulrahman’s grandfather, and Sarah Khan, Samir’s mother. Lawyers with the American Civil Liberties Union and the Center for Constitutional Rights are assisting them in the legal action.

In 2010, the two groups helped Nasser al-Awlaki in an effort to obtain a court injunction against government efforts to kill his son. A federal judge threw out the case, primarily on the ground that Nasser al-Awlaki had no standing to sue in place of his son. Now Nasser al-Awlaki and Ms. Khan represent the estates of their sons and his grandson.

But the new lawsuit may face other procedural impediments before it would reach any substantive ruling on whether the strikes violated the Constitution — or even a public acknowledgment that the United States government did carry them out and an explanation of the evidence and decision-making behind them.

The Justice Department, which is likely to provide lawyers for the defendants, may ask a judge to dismiss the case by asserting that the evidence necessary to litigate it would disclose state secrets, or that decisions about whom to kill in an armed conflict are “political questions” not fit for judicial review. The government asserted both arguments in the 2010 case, and the judge who dismissed that lawsuit also cited the “political question” doctrine.

Even if a judge declined to dismiss the case on those grounds, the officials could assert that “qualified immunity” protected them from lawsuits that accuse them of violating someone’s constitutional rights while performing official actions that did not violate “clearly established law” at the time. President Obama is not named in the lawsuit; the Supreme Court has ruled that presidents enjoy “absolute immunity” from lawsuits stemming from their official actions.

While it has been widely reported that the United State carried out the strikes, the Obama administration has never officially acknowledged responsibility for them. The New York Times has described the details of a secret Justice Department memorandum that concluded that it would be lawful to target Anwar al-Awlaki if capturing him was infeasible. The Times and the A.C.L.U. have sued for disclosure of that document under the Freedom of Information Act.

Several administration officials, including Attorney General Eric H. Holder Jr. in a speech at Northwestern University in March, have also defended the targeting of citizens, without a trial, if they join terrorist groups and under certain conditions.

“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces,” Mr. Holder said. “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.” . . .

Continue reading. TomDispatch has a good discussion of this action along with an article by Noam Chomsky on the Magna Carta.

Written by Leisureguy

22 July 2012 at 4:15 pm

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