Sunday, September 26, 2010

Just when you thought it couldn't get worse

The O-gang has filed its response to the ACLU-CCR suit on behalf of Anwar al-Awlaki's father, who is seeking an injunction against the administration's declared intention to kill Awlaki without any sort of due process despite the facts that he is a US citizen, and is neither on or near any actual battlefield.

The response - big surprise - calls for the case to be dismissed out of hand. Pres. Hopey-Changey has already established a record showing that he does not want any of his actions questioned by the courts. What's important is the basis for the argument. I'm going to turn the next paragraph over to Glenn Greenwald:
At this point, I didn't believe it was possible, but the Obama administration has just reached an all-new low in its abysmal civil liberties record. ... [W]hat's most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is "state secrets": in other words, not 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. [Emphasis in original.]
I say again, Mr. President, as I did back in April, just who the hell do you think you are?

This has gone past outrageous right into depraved. I want you to imagine just 10 years ago reading a novel with a plot revolving around a president having the authority to kill US citizens simply on their own say-so, based on secret evidence no one outside their circle ever sees and which no court can review and no one can challenge. You would probably think the idea was too far-fetched to be taken seriously. But that is exactly the power Barack Obama is now claiming for himself.

I'm only having trouble deciding one thing: The WaPo reported that
[g]overnment lawyers called the state-secrets argument a last resort to toss out the case, and it seems likely to revive a debate over the reach of a president's powers in the global war against al-Qaeda. ...

Robert M. Chesney, a national security law specialist at the University of Texas School of Law, said that Obama lawyers would undoubtedly prefer not to stoke the state-secrets debate, or to risk judicial review of its claim to a borderless battlefield. ...

"You're trying to avoid a judicial ruling on the merits of the whole issue," Chesney said, adding, "But at the end of the day, if it's your best argument in a case you want to win, you're going to make that argument."
Which means that its inclusion in the brief is an indication that the government does not have a lot of confidence in its other arguments and thinks this is its trump card.

So here's the thing I can't decide: Does that make this more outrageous or not?

I expect there will be more to say about this, more than I can deal with here and now. But it's hard to express how angry and depressed at the same time it makes me.

Footnote: Marcy Wheeler points out that in its brief,
the government does not commit to the basis for its authority to kill an American citizen like Anwar al-Awlaki with no review.
That is, the government never actually makes a case for the authority it's claiming to order a hit on a citizen. They just assert the authority is there and focus on arguing that al-Awlaki's father doesn't have standing to bring the case and doggone it, even if he does, a presidential order to kill his son without due process is a "political question" that the courts shouldn't even touch.

(I thought the issues in the case revolved around the limits of executive authority and how that sort of question became "non-justiciable" is a mystery to me, but never mind.)

But as Wheeler points out, the O-crowd won't even commit to saying if al-Qaeda in the Arabian Peninsula (AQAP), the group with which Awlaki is allegedly involved, is part of al-Qaeda itself or just "associated" with it. That makes the entire argument problematical since the Authorization to Use Military Force (AUMF) passed after 9/11 only authorizes the president to act against those involved with or aiding and abetting those who attacked on that day - and AQAP did not exist at that time.

As a sidebar to the Footnote, she also mentions that the brief whines that the White House and military "simply can’t be expected to operate under 'generalized standards' and 'general criteria.'" Hmmm. Generalized standards. Aren't they what we call laws?

A Second Footnote: In response to the suit,
Justice Department spokesman Matthew Miller said that the groups are asking "a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action - all on behalf of a leader of a foreign terrorist organization."
Besides referring to it as "an ongoing military action" with all the implications of "the battlefield is everywhere" so no one is ever captured "away from the battlefield," I guess means that in the minds of the O-gang, innocent until proven guilty is another "general criteria" to which the administration can't be expected to adhere.

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