Court: US Can’t Keep Secret Laws Governing When It Can Assassinate Citizens

“…it would be good to know under what circumstances the White House thinks it can kill Americans without a trial.”

If Rip Van Winkle awoke just yesterday, he might be dumbfounded at the above sentence. To Americans in the Obama-era, it is an all too relatable assertion.

The sentence comes from The New Yorker‘s Amy Davidson and she is referring to the court decision this week that ordered the Obama administration to release the legal memo that authorized targeting an American citizen, Anwar al-Awlaki, for assassination.

In it’s decision, the court made clear that this does “not challenge the lawfulness of drone attacks or targeted killings.” Instead, as Davidson sardonically puts it, the decision establishes that, “We get to know what the law is.”

The case is important, first, because it would be good to know under what circumstances the White House thinks it can kill Americans without a trial. More than that, the decision turns on what has become, especially after Edward Snowden’s leak of N.S.A. documents, the crucial point in the debate over civil liberties and security: the government gets to have secrets, but it doesn’t get to have secret laws.

…More than a year after the Awlakis were killed—and after a lower-court judge upheld the government’s denial of the F.O.I.A. request for the memo—Michael Isikoff, of NBC, obtained a Department of Justice white paper on targeted killings. This was a sort of Cliff’s Notes for the secret O.L.C. memo, sixteen pages long and deeply unsatisfying. It used words like “imminent threat” in ways that were jarringly vague. On its own, the white paper suggested that the President could decide that an American living abroad was frightening, and that would be enough for a death sentence—it would count as due process if the President duly processed the question in his own mind, taking time to think it through.

…We get to know what the law is. The most important single revelation in the Snowden papers has been that, too often, we did not. There were secret surveillance-court decisions that interpreted statutes in ways that defied the plain meaning of English words like “collected” and “targeted.” Targeted listening, targeted killing—we need to know, when the government talks and directs and justifies, just what it thinks it is saying.

As I wrote in The American Conservative last year, the Obama administration has excelled in “vastly increasing the government’s use of secret laws and secret interpretations of known laws.” To the extent that this court decision puts a check on that dangerous expansion of power (the government may still appeal), this decision is a success.

With any luck, the decision will put pressure on the administration to reign in its drone war in general. As Rosa Brooks, Professor of Law at Georgetown University Law Center told Congress last year, “When a government claims for itself the unreviewable power to kill anyone, anywhere on earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals, it undermines the rule of law.”

22 thoughts on “Court: US Can’t Keep Secret Laws Governing When It Can Assassinate Citizens”

  1. In the last paragraph, Georgetown Law Prof. Brooks states the obvious. But it is too vanilla. Instead of stating that US drone policy "undermines" the rule of law a more accurate way to state it would be that it "negates" all law and is an abomination on the face of the earth.

  2. Whoa there. I would have thought that the 5th and the 6th amendment are clear enough on this point.

    An excerpt from the 5th: “nor be deprived of life, liberty, or property, without due process of law;”

    And if it’s not clear what the “due process” is, look at the 6th: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

    So that’s the definition of the minimum standards for the due process.

    Which part of “PUBLIC trial” can people not understand?

    And as for the government’s legal memo… the government does not have the authority to do things that are violations of the constitution. Even the Congress does not have the authority to pass laws that would be against the constitution. Any such document would be null and void, with no legal force, and making of it would be a crime in itself (as it goes against the primary law of the land).

    Any court of law that doesn’t follow even this basic logic has no business calling itself a court of law.

  3. Doubt if this decision will rein in Obama's killing ways, he'll just just use his executive powers, or play dumb.

  4. Both the Bush and Obama administrations have murdered tens of thousands of people, and they have seriously damaged our constitution.

    1. Thank you for being honest enough to include Bush along with Obama. I, for one, am getting sick and tired of the hypocritical sleazeballs on both the right and the left making excuses for, and turning a blind eye towards, the murderous psychopaths who they voted for while trying to criticize the guy they didn't vote for, when both sides are guilty of committing the same kind of evil criminal acts.

      Our enemies, people, are both the Ds and the Rs. Both parties are corrupt and criminals right down to their ugly, yellow stained, Satanic toenails.

  5. Secret laws are one of the hallmarks of tyranny, but so are indefinite detention, assassination by executive order (drone killing), mass surveillance with no individual warrants, and about a dozen other activities that the USG or its well paid private contractors engage in on a daily basis. This ruling is unlikely to last long. Obama's Dept. of (In)Justice will simply find a higher court willing to overturn this decision, much like Judge Katherine Forrest's 2012 ruling that indefinite detention was unconstitutional (in a case filed by Chris Hedges and others) was overturned.

    1. There is one word to define the illegal and immoral actions you describe RICinOR, it is EVIL. Have we really become a very evil nation? Are we really evil?

      1. The "illegal and immoral actions" aren't something I just made up, they are topics in MSM news. The actions and policies of US leaders have long since ceased to reflect the will of the US public, so no, "we" are not necessarily evil, but I can't say the same of the US "leaders" who enacted and defend those actions and policies.

        1. I agree that you didn´t make up the facts about the US Government´s illegal and immoral action and that they are real. I also agree that the government is evil.

          The people: After WW-II Americans blamed the German people for the crimes committed by its government, the Hitler regime – the Germans lived under total control, there was little they could do. Americans still have some of their democracy in place, but they permitted and continue to permit illegal and immoral acts by their government – shouldn´t they take some of the responsibility? Shouldn´t they (we) be judged as we judged the German citizens?

          The correct answer, if there is one, is not important, but if American citizens did begin to picture themselves as taking part in an evil empire, they might just be jolted into reacting against the evils of their slimy leaders.

          RICinOR, I agree with everything you´ve said, and would like to take the position that the people in a democracy have no responsitily for the evils of their government, but that is too difficult for me.

          1. Thanks for the thoughtful response, and sorry if I was mistaken about the thrust of your original comment. There are, in fact, a fairly significant number of US citizens who are fully supportive of the evil acts of the US government: more than 50% of Americans now believe that torture is, at least sometimes, OK. But I would argue that just as there were many in pre and post WWII Germany who loathed almost everything the National Socialist government did, there are a large number of Americans who want no part of what the USG is doing.

            However, you're correct that whether we supported government acts or not, we'll still get the blame from those who believe we could and should have done more to fight against the evil the USG has done in the name of all Americans. So while I may feel no personal responsibility (or share in the evil) for secret laws enacted without my knowledge, I recognize that others may still hold me accountable for electing – and not impeaching or overthrowing – the government that did create such laws. We can only hope that, if we do end up in the position of the post WWII Germans, the victors will be more merciful to us than we were to the Germans (millions of whom were deliberately starved in open fields without shelter).

          2. Wait you actually elect these people? You mean you vote for 3rd partiy candidates that get 1% of the vote and wonder why your bother right? You dont' actually vote for the "lesser" evil @#$ do you? (there may be a few, very very few exceptions on the slightly more accountable levels of government).

            I dont' want mercy, I want justice. I think such would recognize that the evil is primarily the rulers and perhaps those who buy them, they ARE primarily responsible. But I don't think the citizens get to get off scott free.

          3. Yep, I vote 3rd party, and wonder why I bother. I would not vote rather than vote for the lesser of two evils, but even that could be considered "electing" someone.

            I'd hope for justice tempered with mercy, but recognize that our leaders have – through their evil acts – created a very angry mass of humanity that probably won't be willing to give much of either to anyone in the US.

          4. It is better to vote third party than not at all. I know some advocate not voting. But that plays right into our 2-headed snake, who don't care how low the vote total is as long as there is no other party to challenge their monopoly. They can just blame it on apathy rather than the fact that they are rotten to the core.

  6. I vote for third party candidates if I know they'll be better than the Republicrats or Demopublicans. I voted for Gary Johnson of the Libertarian Party. I found out what I needed to know about him. He got the most votes of the third party candidates but got far fewer votes than Ehud Barack Obama or Romney. The other good third party candidates were Jill Stein of the Green Party and Rocky Anderson of the Justice Party. The third party candidate I did not like was Virgil Goode of the Constitution Party.

  7. It should come as no surprise that Johnson is an outspoken advocate for the criminal prosecution of whistleblowers like Chelsea Manning or Edward Snowden. He served as general counsel during the height of the WikiLeaks scandal

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