Homeland Security Watch

News and analysis of critical issues in homeland security

January 4, 2013

What is a nation of laws?

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on January 4, 2013

On Wednesday, January 2, Federal District Judge Colleen McMahon filed her decision in two Freedom of Information Act cases brought by the New York Times and American Civil Liberties Union.  The full decision is available from the Federal District Court website.

Below is a thousand word excerpt that I hope might motivate you to read — and perhaps comment here — on the full decision.

The issues which these cases and this decision highlight are fundamental to the American experiment in self-government.  These issues are not and have never been easy to resolve.  This is precisely why a vigorous and thoughtful dialogue on the issues is important.

In some contexts — marriage, parenting, worship and, I would argue, citizenship — it is often the honesty and quality of the dialogue (what is said and what is heard) that is much more helpful than agreement.  It is possible to share a sensibility even when we continue in specific disagreement.


Broadly speaking, [the plantiffs] seek disclosure of the precise legal justification of the Administrations’s conclusion that it is lawful for employees or contractors of the United States Government to target for killing persons, including specifically United States citizens, who are suspected of ties to Al-Qaeda or other terrorist groups…

The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States and if we are indeed a nation of laws, not of men.  The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions.  More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable “hot” field of battle would allow for intelligent discussion and assessment of a tactic (like torture before it) remains hotly debated.  It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty…

I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22.  I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret…

The United States has pursued members of Al-Qaeda and affiliated groups elsewhere in the world [outside Afghanistan], both in the adjacent country of Pakistan and far from any “hot” battlefield.  In recent years, it has targeted a number of such individuals for death and killed them, using both armed forces and unpiloted remotely controlled precision aircraft known as “drones.” The Obama Administration has publicly admitted that the Government is engaged in such operations:

So let me say it as simply as I can.  Yes, in full accordance with the law — and in order to prevent terrorist attacks on the United States and to save American lives — the United States Government conducts targeted strikes against specific al-Qa’ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.

John O. Brennan, Ethics and Efficacy Speech (Apr. 30, 2012).

Al-Qaeda operative Anwar al-Awlaki was killed in late 2011.  speaking on September 30, 2011 the day of Al-Awlaki’s death, at the “Change of Office” Chairman of the Joint Chiefs of Staff Ceremony in Fort Myer, Virginia, President Obama described Al-Awlaki as follows:

Awlaki was the leader of external operations for al Qaeda in the Arabian Peninsula.  In that role, he took the lead in planning and directing efforts to murder innocent Americans.  He directed the failed attempt to blow up an airplane on Christmas Day in 2009.  He directed the failed attempt to blow up US cargo planes in 2010.  and he repeatedly called on individuals in the United States and around the globe to kill innocent men, women, and children to advance a murderous agenda.

At the time of his death, Al-Awlaki was not in or near the field of battle in Afghanistan, where active military operations were taking place.  He was located about 1500 miles from Afghanistan, in Yemen, a country with which the United States is not at war (indeed, which the United States counts as an ally).

Killed with Al-Awlaki was an individual named Samir Khan.  Al-Awlaki’s teenaged son, Abdulrahman Al-Awlaki, was killed in a separate strike in Yemen on October 14, 2011.

Al-Awlaki, his son, and Khan were all United States citizens…

The decision to target a United States citizen for death is made by the President on the recommendation of senior Government officials… According to the Attorney General of the United States and other senior Executive Branch officials, these decisions are made pursuant to a process that is constitutionally and statutorily compliant.  In particular, Government officials insist that a United States citizen can be targeted by the Executive Branch and still be accorded due process of law.

The Government’s vociferous insistence that its decisions to kill United States citizens are lawful, and most especially its references to due process, may seem odd in the context of war — although there is and long has been robust debate  about what to call the anti-Al-Qaeda operation, and whether anti-terrorist operations in countries other than Afghanistan and adjacent territory in Pakistan can fairly or legally be classified as a war… However, even if there were no such debate, it is not surprising that the Government feels somewhat defensive.  Some Americans question the power of the Executive to make a unilateral and unreviewable decision to kill an American citizen who is not actively engaged in armed combat operations against this country.  Their concern rests on the text of the Constitution and several federal statutes, and is of a piece with concerns harbored by the Framers of our unique form of Government…

The Framers took steps to address their fear in the document they drafted.  In particular, the Fifth Amendment to the Constitution provides that no person shall be “deprived of life… without due process of law.”  The words “due process of law” are not further defined in the the Constitution, or in the Bill of Rights.  However, “The first, central, and largely uncontroversial meaning of “due process of law,” the meaning established in the Magna Charta and applied vigorously by Coke against the first two Stuart Kings, was that the executive may not… restrain the liberty of a person within the realm without legal authority arising either from established common law or from statute.  In other words, executive decrees are not “law.”…

When a person is accused of committing a crime, and the Government has the power, upon conviction, to deprive him of life or liberty, the particular rights enumerated in the Fifth and Sixth Amendments (ranging from the right to indictment to the right to counsel) are recognized as setting the minimum guarantee of the Due Process Clause.

Read the full decision.

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Comment by William R. Cumming

January 4, 2013 @ 8:21 am

A thoughtful post and opinion of the District Court!

I don’t believe my initial reaction to the opinion will surprise readers of this blog. But for purposes of the record this is where I stand!

First, admitted to the Integrated Bar of the Commonweath of Virginia and its Supreme Court long long ago but no longer active and having never practiced law in the retention of private clients my intent in attending law school was solely to gain insights into the practice of a profession that even De Toqueville understood had unusual influence in the culture and life of Americans. Oddly it took until the mid-70’s for a history of that profession [and then only to 1900] to be published. A brilliant tome by the way.

In they years since that admission to the BAR I have spent most of my time paid by the year not by the hour by the TAXPAYER! Hopefully returned value including setting up the underpinnings of an $80M deficiency while employed by the US Treasury and IRS.

I also had some additional JAG duties when in the US ARMY although primary duties were as a LT FA dealing with nuclear surety and safeguard issues in the then FRG.

But that personal experience was enough to witness a close hand the decline and corruption of my profession in many many ways. The value of the judgment and any information he/she provides to the client presumably reflects the best legal position to be taken to support the client’s interest but also the Rrulns

Comment by William R. Cumming

January 4, 2013 @ 8:32 am

the Rule of Law. Chief Justice John Marshall, the greatest Chief Justice, left a legacy cementing the position of SCOTUS and the law that will stand monumentally for all time. He hated slavery and his portfolio of decisons laid the path to both the Civil War and other fundamental propositions for Americans. Included in that portfolio was the concept that corporations were not persons. This
SCOTUS of course ignored those precedents in their result oriented jurisprudence. He did not however have the opportunity to address Official secrecy or the modern administrative state in its daily domestic and foreign operations. Yet he did address some propositions that are raised by the National Security State.

One was the notion of accountability. In an 1803 decision LITTLE v. BAREME he held that no action by the government was lawful that was conducted by perostatat l

Comment by HGRATTAN

January 4, 2013 @ 8:36 am

E.O.s are ambiguous. Implicitly, President Washington started the E.O. process.

IMHO, the writ of executive orders falls within the broad scope of the U.S. social contract.

I sense that you are arguing for a codification of targeting killing with greater transparency and an oversight mechanism. Do I understand you correctly?

I sense that the issues related to targeted killing are part of a larger homeland and national security imperative:

1. The identification of who we are as a nation.
2. The identification of who we want to be as a nation.

The unclassified 2010 National Security Strategy does a “fair” job of identifying the values of the U.S. and a whole of government approach to national security. IMHO, NSS 2010 does not sufficiently articulate civic responsibility.

IMHO , the U.S. needs a Social Contract 2.0 predicated on twenty-first century hazards and vulnerabilities and an articulation of stakeholders responsibilities.

Comment by William R. Cumming

January 4, 2013 @ 8:48 am

by the government or its agents wherein it could not be determined what position the agent held and what authority he/heard had in law.
The President has pursuant to 3 USC Section 301 the authority to delegate any of his/her authority but he must comply with the above.
The notion that secret law or secret delegations exist is FICTION!
Thus, while the President has stated that he alone authorizes the strikes after extensive review that decision making is not authorized by law when someone else pulls the trigger. REMEMBER THERE IS NO DECLARED WAR!
Personally, I believe like Winston Churchill in his ordering the firebombing of Dresden, I think President Obama, who I will in future refer to as the child king John, and his Sheriff of Nottingham, John Brennan, will be in the dock of history and condemned.

A spineless and cowardly Congress is now the last hope for review of the Imperial Presidency since nominations and confirmation of new judges is largely stopped at the moment.

This opinion will and should be appealed even though I am not hopefull that the Judiciary and its judicial process is up to the task of setting forth new guidance for the National Security State.

Comment by William R. Cumming

January 4, 2013 @ 8:57 am

Executive Orders not based on law have been determined by the Courts and Scotus to be null and void.

Comment by Quin

January 4, 2013 @ 9:03 am

I’ve always been perplexed by those who think that if you citizenship it gives you a free card to openly declare war on the U.S. and not then be subject to the Law of War.

Perfectly timed article this morning in the Atlantic on the process in question: http://www.theatlantic.com/international/archive/2013/01/how-obama-decides-your-fate-if-he-thinks-youre-a-terrorist/266419/

Comment by Philip J. Palin

January 4, 2013 @ 9:18 am

Mr. Grattan: I am not yet offering an argument related to targeted killings. But, yes, I am trying to organize my thoughts toward a possible argument.

Toward such an end I concur with Judge McMahon that executive decrees are not law. An EO will, appropriately, instruct those delegated by the President to execute the laws as to his understanding of the laws. But the executive ought not originate law. The executive must surely not issue instructions contrary to the law.

We have spent most of a thousand years shifting the locus of sovereignty from monarch to demos. I’m not inclined to cooperate with a reversal in course. Because the executive is human, the executive will be self-interested and therefore decisions of the executive ought be subject to review and possible redirection.

I also concur with Bill Cumming that secret law cannot be true law. Law is proclaimed. Law is explicit. In the Western tradition, law is written… once even engraved in stone. Law is knowable. In your word, law is transparent.

If sovereignty is to meaningfully abide with the demos then, certainly I agree with you, there must be some significant level of widely realized civic responsibility. Otherwise as we have seen across history, in the absence of the sovereign there is mostly petty conflicts over power.

Comment by Michael Brady

January 8, 2013 @ 10:33 am


“…the writ of executive orders falls within the broad scope of the U.S. social contract.”

“…the U.S. needs a Social Contract 2.0 predicated on twenty-first century hazards and vulnerabilities and an articulation of stakeholders responsibilities.”

What is this U.S. social contract you speak of? Last I checked our expectations regarding the authority of the various branches of the federal government were delineated in the Constitution. The means to amend it (which are simple, but not easy) are spelled out in Article V.

Comment by Christopher Tingus

January 11, 2013 @ 11:06 pm

I, too believe that no one should have the extent of power grab we are witnessing at the moment! The law is indeed transparent if in fact we have intent to stand forthright as a Democracy!

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