Obama scores again against the Constitution. The Tea Party is right about the battle, but AWOL.

Summary:  Every week provides more evidence supporting the Tea Party’s belief of the Constitution’s imperiled condition.  But their failure to act shows their true colors.  As for Team Obama, their own words indict themselves.  Cry Baa, baa, baa while you read it, and  weep for our lost Republic, dead of abandonment.

Due process, evidence, warrants, trials — all are pointless ritual to our rulers.  The Constitution nothing but a paper bullet of the mind.  If King John had filed a motion opposing Magna Carta, or King James II a motion in favor of an absolute monarchy for England, it would have looked like this:    A motion filed by Team Obama on 24 September 2010 in the case of NASSER AL-AULAQI, as a friend acting on behalf of ANWAR AL-AULAQI vs BARACK H. OBAMA, President of the United States (following in the footsteps of his predecessor).  Glenn Greenwald (constitutional lawyer) aptly describes the situation:

{N}ot only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

History shows how quickly a people can slide into the grip of tyranny.  We already have many Americans cheering the process, potential recruits for an American Stasi or KGB (see the comments here to see some cheerleaders in action).

Summary of the motion

Defendants Barack H. Obama, President of the United States, Leon E. Panetta, Director of the Central Intelligence, and Robert M. Gates, Secretary of Defense, hereby move to dismiss Plaintiff’s complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), on the grounds that Plaintiff lacks standing and that his claims require the Court to decide non-justiciable political questions. … To the extent that the foregoing are not sufficient grounds to dismiss this lawsuit, plaintiff’s action should be dismissed on the ground that information properly protected by the military and state secrets privilege would be necessary to litigate this action.

Introduction (short for he’s guilty because we say so, no proof needed)

Anwar al-Aulaqi is a dual U.S.-Yemeni citizen and a leader of al-Qaeda in the Arabian Peninsula (AQAP), a Yemen-based terrorist group that has claimed responsibility for numerous armed terrorist attacks against American, Saudi Arabian, Korean and Yemeni targets since January 2009. See Public Declaration of James R. Clapper, Director of National Intelligence (DNI) … As set forth by the DNI, Anwar al-Aulaqi has recruited individuals to join AQAP, facilitated training at camps in Yemen in support of acts of terrorism, and helped focus AQAP’s attention on attacking U.S. interests.

In addition, since late 2009, Anwar al-Aulaqi has taken on an increasingly operational role in AQAP, including preparing Umar Farouk Abdulmutallab in his attempt to detonate an explosive device aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009. The United States has further determined that AQAP is an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court recognized in Hamdan v. Rumsfeld, 548 U.S. 557, 628-31 (2006).

… Plaintiff does not seek to challenge the Government’s determination that his son is an operational leader of AQAP and does not seek to categorically stop the United States from using lethal force against his son under all circumstances. Rather, plaintiff seeks to enjoin the President of the United States, the Secretary of Defense, and the Director of the Central Intelligence Agency, from “intentionally killing U.S. citizen Anwar Al-Aulaqi” outside an armed conflict “unless he is found to present a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat[.]”

The injunction plaintiff seeks would be unprecedented, improper, and extraordinarily dangerous, regardless of the truth of his allegations (which the United States does not and cannot confirm or deny). That requested injunction would necessarily and improperly inject the courts into decisions of the President and his advisors about how to protect the American people from the threat of armed attacks, including imminent threats, posed by a foreign organization against which the political branches have authorized the use of necessary and appropriate force.

First, plaintiff’s attempt to invoke the Court’s Article III jurisdiction in order to seek an injunction on behalf of his son is unprecedented and unfounded. The very basis of this lawsuit — the alleged threat of lethal force — does not foreclose Anwar al-Aulaqi’s access to the courts: Defendants state that if Anwar al-Aulaqi were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances.

Note that the threat of lethal force is hardly alledged; it comes from senior US officials.  Nor has al-Aulaqi been charged, so he has no need to surrender himself to US authorities.

Third, even if the plaintiff were to have standing, the particular relief he seeks — declaratory and injunctive relief that lethal force not be used unless a threat was imminent and no reasonable alternative existed — would require the resolution of clearly non-justiciable political questions. In particular, plaintiff’s requested relief would put at issue the lawfulness of the future use of force overseas that Executive officials might undertake at the direction of the President against a foreign organization as to which the political branches have authorized the use of all necessary and appropriate force.

Specific decisions regarding the use of force frequently must be made in the midst of crisis situations that can arise at any time, and that involve the delicate balancing of short- and long-term security, foreign policy, and intelligence equities. The Judiciary is simply not equipped to manage the President and his national security advisors in their discharge of these most critical and sensitive executive functions and prescribe ex ante whether, where, or in what circumstances such decisions would be lawful. Whatever the limits of the political question doctrine, this case is at its core.

If the Courts cannot examine the government’s use of lethal force, they’re just a waste of money and time.  The possibility of some future hypothetical ticking bomb event hardly exempts the government from judicial review or constitutional limitations.

For example, even assuming for the sake of argument that plaintiff has appropriately described the legal contours of the President’s authority to use force in a context of the sort described in the Complaint, the questions he would have the court evaluate — such as whether a threat to life or physical safety may be “concrete,” “imminent,” or “specific,” or whether there are “reasonable alternatives” to force — can only be assessed based upon military and foreign policy considerations, intelligence and other sources of sensitive information, and real-time judgments that the Judiciary is not well-suited to evaluate.

Application of these and other considerations in this setting requires complex and predictive judgments that are the proper purview of the President and Executive branch officials who not only have access to the sensitive intelligence information on which such judgments are necessarily based, but also are best placed to make such judgments. Enforcing an injunction requiring military and intelligence judgments to conform to such general criteria, as plaintiff would have this court command, would necessarily limit and inhibit the President and his advisors from acting to protect the American people in a manner consistent with the Constitution and all other relevant laws, including the laws of war. Such judicial interference in fact-intensive decisions concerning how to protect national security could have unforeseen and potentially catastrophic consequences.

The latest volleys in this firefight over the Constitution’s carcass

  1. U.S. Debates Response to Targeted Killing Lawsuit“, New York Times, 15 September 2010
  2. Obama argues his assassination program is a “state secret“, Glenn Greenwald, Salon, 2 September 2010

(3)  “The Secrets They’re Keeping Selectively Leaking about Anwar al-Awlaki“, Fire Dog Lake, 26 September 2010 — Excerpt:

In other words, the Administration is relying on some tie between AQAP and the al Qaeda organization that hit us on 9/11 for its authority to kill an American citizen with no due process. Mind you, it can’t say precisely what that tie is – whether AQAP is al Qaeda or whether it is just closely connected enough to be included under the AUMF. But that’s precisely what it has called a state secret: the evidence of ties between the group against which Congress declared war in 2001 and the group we’re targeting in Yemen.

Effectively, the Executive Branch – with no known support from Congress – is saying we’re at war against AQAP. But it’s also saying no one outside of select people within the Executive Branch (and, presumably, a group of four or maybe eight members of Congress who serve in leadership or on the Intelligence Committees) can see the evidence that proves we’re at war against AQAP. The President has unilaterally declared war against a group but then said no one can see why he has done so.

And then both Gates and Clapper invoke state secrets over the evidence the government has against al-Awlaki. Rather than prove to a judge that they even have reasonable suspicion to believe al-Awlaki is part of AQAP, much less enough evidence to execute him, the government has instead asserted that all of that is a state secret. They’ve declared everything al-Awlaki would need to challenge his execution a state secret.

… More importantly, if the information surrounding al-Awlaki’s targeting is a state secret, then why not prosecute the steady stream of national security officials who have leaked details of his targeting to the press going back to January?  The government has deliberately leaked details of al-Awlaki’s targeting to the press when it served its political purpose. No investigation of which officials made those leaks has ever been launched–not even against Crazy Pete. And yet now that al-Awlaki’s family is asking for the information that has been leaked to the press for the last nine months, the government is choosing to declare it all a state secret.

For more about our dying Republic

See the FM reference page America – how can we reform it?

Other posts in this series:

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. See the last glimmers of the Constitution’s life…, 27 June 2008
  4. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  5. Another step away from our Constitutional system, with applause, 19 September 2008
  6. What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
  7. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
  8. Another step towards fascism: “Silencing the Lawyers”, 31 May 2010
  9. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  10. Code red! The Constitution is burning, 5 August 2010
  11. What do our Constitution-loving conservatives say about our government’s assassination programs?, 2 September 2010
  12. Cutting down the tree of liberty, 9 September 2010
  13. Which political party will best protect our liberties?, 10 September 2010
  14. The guilty ones responsible for the loss of our liberties, 11 September 2010

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