Prez Seeks License To Kill U.S. Citizen 'Terror' Suspect

Illustrating the fragility of our constitutional rights, attorneys for the Obama administration argued Nov. 8 for a presidential power to protect national security by ordering the death without trial of a dual-nation U.S. citizen who advocates killing Americans. Obama and his staff seek to kill or capture Anwar al-Aulaqi (sometimes spelled “Awlaki”), 39, a Muslim cleric in Yemen born in New Mexico, because of mostly secret evidence. In response, civil liberties attorneys retained by the target’s father urged U.S. District Judge John Bates, at right below, to enjoin the government’s plan against the former chaplain at George Washington University in the nation's capital.

The three-hour debate that occurred in the huge ceremonial room of the federal courthouse in Washington, DC illustrates how vague our society’s vaunted constitutional protections might become. Virtually all modern societies, whether Nazi Germany, Stalin’s Russia’s or today’s Iran, have laws, courts and citizen rights, at least in theory. But it’s primarily Anglo-American systems that have created and largely preserved for hundreds of years until now a strong tradition protecting free speech and due process in court, even when the central government seeks to inflame the public against the accused with secret evidence of public danger. These traditions are increasingly endangered, as such conservative legal scholars and Reagan Republican political appointees as Bruce Fein and Paul Craig Roberts argue, by the unprecedented concept of worldwide “war” with scant defined targets that requires abandonment of core legal protections.

“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,” similarly argued Jameel Jaffer of the American Civil Liberties Union (ACLU). “It's the government's responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution.” The ACLU and co-counsel from the Center for Constitutional Rights (CCR) have further argued that the Obama administration’s request for court-permission to kill without due process sets a precedent that endangers many future citizens in many future situations under his successors. Douglas Letter, the Justice Department’s terrorism litigation counsel, said it is “absurd” to imagine that the president’s authority would be extended much beyond the kind of dangerous situation in the national security case at issue in Yemen. Letter argued that unreviewable freedom of action is necessary for U.S. security even though the kill target is not in a war zone or posing an imminent threat to any defined person. Aulaqi appeared on a new video this week on extremist websites saying that Muslims are free to kill American “devils” without obtaining permission from religious authorities, according to news reports.

U.S. investigators say the target is linked to the Army psychiatrist accused of last year's shooting spree at the Fort Hood in Texas military base that killed 13 people. They also allege that he helped prepare a Nigerian for the attempt to bomb an airliner over Detroit last Christmas, and was also connected to the failed bombing in New York City's Times Square in May. U.S. officials have said they would like to prosecute the target in America, according to news reports. Charging him in the U.S. would also make it easier for the U.S. to demand he be turned over.  However, Yemeni officials have said they will not turn him over to the U.S. because, as a Yemeni citizen, he must be prosecuted there

The judge peppered both sides with questions. Bates was a federal prosecutor for 17 years before his appointment to the bench in 2001 by President Bush, including work as deputy director of independent counsel Kenneth Starr’s probe of President Clinton in the Whitewater investigation. Since 2006 Bates has also been a judge on the United States Foreign Intelligence Surveillance Court, whose largely secret decisions on wiretaps almost always result in approval of government requests, according to aggregated statistics. The judge asked the government why courts shouldn’t have a role in overseeing a citizen’s placement on kill lists if courts must be consulted before the government can wiretap or seize property. Addressing the civil liberties lawyers, Bates asked why “state secrets” and “political question” doctrines do not eliminate court jurisdiction over their request for an injunction.  

“The Supreme Court has repeatedly rejected the government's claim to an unchecked system of global detention,” says the Center for Constitutional Rights (CCR), “and the district court should similarly reject the administration's claim here to an unchecked system of global targeted killing.” Websites for CCR and the ACLU provide legal papers, including those from the government and such outside parties as Veterans of Foreign Wars who claim an interest. As additional context, the Pentagon hosted the target in 2001 as part of an outreach program to Muslims, according to a Fox News report Oct. 20.

The judge said he will decide in a few weeks whether he has jurisdiction to hear the case. By political background and a pro-government track record, the judge is clearly a “conservative” in terms of the conventional political terminology.

But this particular case raises, as few others do, the question of what to “conserve.” Should it be the enduring protections of our Constitution, obvious in its plain language along with the broad and inspiring panorama of past court decisions?  Or shall we see more of the rapid erosions of our liberties from kind of fear-mongering and legal pettifoggery during the past decade or so that Fein and Roberts have chronicled in their compelling books, published earlier this year?

Anyone with common sense knows that our nation, like others, gets involved in covert assassinations deemed necessary. But the practice takes on a new importance when killers publicly ask for a court blessing, which then opens the door to do vastly more. Among the consequences, does our message to the world change from, “They hate us for our freedoms” to, “They hate us because we kill people”?

"This is authority that will be available to every other president," said the ACLU's Jaffer at a press conference outside the courthourse after the hearing. "Whether or not you like this president you have to be concerned about what will happen in the future."

Where you stand on such issues depends on where you sit. I'm both a New York City native with relevant sentimental ties to the World Trade Center attack and a Washington resident whose office block is regarded as particularly attractive to would-be terrorists. But that's nothing compared to the risks undertaken by those fighting in actual wars. And I haven’t seen a threat yet worth gutting our Constitution.

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