Blue Heron in flight

Friday, July 19, 2013

Droning on

A Federal Judge expressed some serious misgivings with the Obama Administration's drone program today. U.S. District Court Judge Rosemary M. Collyer, a Bush appointee who happens to be a FISA judge, said that she finds "disconcerting" the Obama administration's position that courts have no role in a lawsuit over the 2011 drone-strike killings of three U.S. citizens in Yemen, including an al-Qaida cleric. Her comments were made at a hearing on a government motion to dismiss the case. The judge did not say which way she would rule on the motion but repeatedly expressed concerns over the government's argument, saying she was "really troubled" by their position.
“Are you saying that a U.S. citizen targeted by the United States in a foreign country has no constitutional rights?” she asked Brian Hauck, a deputy assistant attorney general. “How broadly are you asserting the right of the United States to target an American citizen? Where is the limit to this?”
She provided her own answer: “The limit is the courthouse door.”
Read more about the suit here.
The government has argued that the matter is best left to Congress and the executive branch, not judges, and that courts have recognized that the defense of the nation should be left to those political branches.
Brian Hauck, a deputy assistant attorney general lawyer who argued the case for the government Friday, noted that President Barack Obama, in a speech in May to the National Defense University, said he didn't think it was constitutional for the government to target and kill any U.S. citizen without due process.
"Where was the due process in this case?" asked Collyer, an appointee of President George W. Bush.
Hauck said there were checks in place, including reviews done by the executive branch.
"No, no, no, no, no," Collyer retorted. "The executive is not an effective check on the executive" when it comes to protecting constitutional rights.
Hauck said Congress is also briefed on drone attacks. He added that U.S. officials should be allowed to do their jobs without the threat of litigation hanging over their actions.
"You're saying there is no courthouse door where this goes through," Collyer said later. She repeatedly pressed Hauck to say what checks and balances the president faces, at one point saying in exasperation, "There's a man who won't be taken off message."
When Hauck mentioned the constitutional structure as one such constraint, Collyer replied that the Constitution sets out three branches of government, including the judiciary — "the one that's usually yelled at and not given any money."
She added: "I consider us a nation of laws, and everybody from the president down to homeless people have to follow the law."
From Legal Times:
U.S. District Judge Rosemary Collyer repeatedly expressed concern that the government's position would essentially strip U.S. citizens abroad of their constitutional rights. Deputy Assistant Attorney General Brian Hauck argued there was a difference between having a constitutional right—which he said could be protected by the executive and legislative branches—and being able to make constitutional claims in court. Collyer countered that not being able to access the courts would deprive citizens of the ability to enforce their rights.
"I'm really troubled…that you cannot explain to me where the end of it is," Collyer said. "That, yes, they have constitutional rights but there is no remedy for those constitutional rights."
From WRAL:

This case was filed by Nasser al-Awlaki — Anwar's father and the teen's grandfather — and by Sarah Khan, Samir Khan's mother. Nasser al-Awlaki wrote a New York Times op-ed piece this week. He wrote that two years after his grandson's death, the government still hasn't explained why he was killed. The boy was born in Denver and came to live with him when he was seven, and left home in 2011 in search of his father.
"The government has killed a 16-year-old American boy," he wrote. "Shouldn't it at least have to explain why?"
The high-profile case attracted a rare fully-packed courtroom. When Collyer walked into the room, she said, "Holy cow! This is a really serious matter, so I shouldn't say holy cow, but holy cow!" 

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