I came across a thought provoking article in the NYT which has a lot of relevance to Pakistan, Afghanistan and many other countries.
Editorial
Judicial Scrutiny Before Death
Published: December 12, 2010
The Obama administration no longer has to worry about an immediate legal challenge to its policy of targeting terrorists, including American citizens, for assassination. A federal judge threw out a lawsuit brought by the father of Anwar al-Awlaki, an American citizen hiding in Yemen who is on the government’s target list. He said the father had no standing to sue.
But the administration should remain very worried about the moral implications of its policy, which were sharply questioned by the judge, John Bates of the United States District Court for the District of Columbia, as he dismissed the suit. Among the many unanswered questions raised by the lawsuit, he wrote, is this one: “Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?”
Judge Bates deftly nailed the most problematic aspect of the government’s policy — acting as judge and jury, choosing terrorist threats and killing them with little outside scrutiny. President George W. Bush routinely abused that kind of discretion, and though there is little evidence that President Obama has done so, the potential for serious abuse remains. Though this judge said he felt powerless to impose a solution, other judges may be more aggressive if the administration does not work with Congress to allow some form of judicial review.
The lawsuit, filed by the American Civil Liberties Union and the Center for Constitutional Rights, always seemed a little shaky in its legal theory. Mr. Awlaki’s father is not directly affected by the targeting policy. Mr. Awlaki, accused of helping plan attacks by Al Qaeda in Yemen, is the only one who could reasonably sue in this case, but to do so would require turning himself in, and then the issue would be moot. That has always been the problem with trying to litigate these matters in open court: formal due process is usually impossible.
But that doesn’t mean that there is no place for judicial scrutiny. We have argued for creating a court that operates in secrecy, like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States. The government could present its evidence to this court behind closed doors before putting a terror suspect on its target list. Judge Bates made a similar point: How can the government prohibit judicial scrutiny for assassination, he asked, if it is required to get approval for electronic surveillance?
The judge noted that the courts are not necessarily equipped to set standards for who should be targeted, and he is correct. Those standards should be agreed upon by the White House and Congress and made public; the secret court can then determine whether a targeted person meets those standards. Once the government proves its case that a suspect is an active terror threat, the timing and method of killing — which would always have to be a last resort — is still up to the executive branch.
The government may have won this legal battle on technical grounds, but the underlying civil liberties violation is still going on.
http://www.nytimes.com/2010/12/13/opinion/13mon2.html?ref=global
Editorial
Judicial Scrutiny Before Death
Published: December 12, 2010
The Obama administration no longer has to worry about an immediate legal challenge to its policy of targeting terrorists, including American citizens, for assassination. A federal judge threw out a lawsuit brought by the father of Anwar al-Awlaki, an American citizen hiding in Yemen who is on the government’s target list. He said the father had no standing to sue.
But the administration should remain very worried about the moral implications of its policy, which were sharply questioned by the judge, John Bates of the United States District Court for the District of Columbia, as he dismissed the suit. Among the many unanswered questions raised by the lawsuit, he wrote, is this one: “Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?”
Judge Bates deftly nailed the most problematic aspect of the government’s policy — acting as judge and jury, choosing terrorist threats and killing them with little outside scrutiny. President George W. Bush routinely abused that kind of discretion, and though there is little evidence that President Obama has done so, the potential for serious abuse remains. Though this judge said he felt powerless to impose a solution, other judges may be more aggressive if the administration does not work with Congress to allow some form of judicial review.
The lawsuit, filed by the American Civil Liberties Union and the Center for Constitutional Rights, always seemed a little shaky in its legal theory. Mr. Awlaki’s father is not directly affected by the targeting policy. Mr. Awlaki, accused of helping plan attacks by Al Qaeda in Yemen, is the only one who could reasonably sue in this case, but to do so would require turning himself in, and then the issue would be moot. That has always been the problem with trying to litigate these matters in open court: formal due process is usually impossible.
But that doesn’t mean that there is no place for judicial scrutiny. We have argued for creating a court that operates in secrecy, like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States. The government could present its evidence to this court behind closed doors before putting a terror suspect on its target list. Judge Bates made a similar point: How can the government prohibit judicial scrutiny for assassination, he asked, if it is required to get approval for electronic surveillance?
The judge noted that the courts are not necessarily equipped to set standards for who should be targeted, and he is correct. Those standards should be agreed upon by the White House and Congress and made public; the secret court can then determine whether a targeted person meets those standards. Once the government proves its case that a suspect is an active terror threat, the timing and method of killing — which would always have to be a last resort — is still up to the executive branch.
The government may have won this legal battle on technical grounds, but the underlying civil liberties violation is still going on.
http://www.nytimes.com/2010/12/13/opinion/13mon2.html?ref=global
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