Tuesday, December 7, 2010

US District Court Rules Targeted Killings Are Unreviewable Political Questions

According to the New York Times, the U.S. District Court for the District of Columbia issued an opinion today In the case of Anwar al-Awlaki, a dual U.S. and Yemeni citizen accused of being a terrorist, which holds that executive branch's decision to subject a U.S. citizen to "targeted" or extrajudicial killing abroad is a judicially unreviewable decision under the political question doctrine.  The Court also dismissed the suit on the grounds that Mr. al-Awlaki's father did not have standing to sue on his behalf.  The so-called political question doctrine permits judges to avoid deciding cases when the issue is textually committed to another branch of government or there is a lack of judiciallly manageable standards to decide the case.  See Baker v. Carr.  Other factors the court may take into account include whether an adverse decision will potentially embarass other branches of the federal government and show a lack of respect for those other branches.  Cases involving national security, military matters, and foreign relations issues are often determined to be nonjusticiable political questions.  The ACLU, who filed the case on behalf of Mr. al-Awlaki's father, has denounced the decision because it leaves too much discretion to the executive branch to potentially violate the rights of U.S. citizens.

(cgb) 

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Comments

One procedural question re the application of the (federal) courts own standards for judicial review, whether the petitioner has standing to litigate: and the answer is may be not, under the basic 'direct injury' test.

Two fundamental constitutional questions at stake. FIRST, whether the targeted killing of an individual, specifically of a U.S. citizen, by an Executive decision, may constitute a case or controversy under Article III of the Constitution, and thus subject to judicial determination. SECOND, whether the targeted killing of an individual, and specifically of a U.S. citizen, constitutes a criminal sanction or an act of war. One THIRD fundamental question in international law: What international law norms apply to extrajudicial executions or killings, specifically as the acts of extrajudicial killing or execution are conducted by national state governments, in this particular instance the U.S. government.

On the first constitutional question -whether the targeted killing of an individual, and specifically of a U.S. citizen, by an Executive decision, constitutes a case or controversy under Article III of the Constitution, and thus subject to judicial determination- the answer is YES.

On the second constitutional question, -whether the targeted killing of an individual, and specifically of a U.S. citizen, constitutes a criminal sanction or an act of war- the answer is IT IS A CRIMINAL SANCTION, SINCE ACTS OF WAR ARE COLLECTIVE ACTIONS OF USE OF FORCE (even the smallest units of the enemy are not targeted as such individuals but as instruments of the collective enemy). Now, if the argument that it is an act of war is going to prevail as a result of a political decision by the courts, courts nevertheless should admit that it entails major changes in terms of the rules of war, that it modifies the terms of the powers to declare war under Article I, Section 8 of the Constitution, and the courts should therefore address the question whether there is a separation of powers issue at stake.

On the third, international law related question -whether there are international law norms tat apply to extrajudicial executions or killings, specifically as the acts of extrajudicial killing or execution are conducted by national state governments, in this particular instance the U.S. government- I encourage our colleagues to check on the U.N. page of the Special Rapporteur on extrajudicial, summary or arbitrary executions, http://www2.ohchr.org/english/issues/executions/index.htm, and, also of great interest, the Rapporteur call on the U.S. to "Take Steps to Avoid Unlawful Killings", of June 30, 2008, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=8815&LangID=E

Best regards,
Leo Lovelace
Cal Poly Pomona
California, USA

Posted by: Leo Lovelace | Dec 11, 2010 3:25:51 PM

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