Wednesday, December 08, 2010

Murder as a Political Question

A United States District Court Judge dismissed a lawsuit yesterday brought by a father who wanted to block the Obama Administration from killing his son, a U.S. citizen; so, the contract to off the son is still good.  (The Administration declines to admit or deny that it plans to kill the guy.)

Sounds terrible doesn’t it?  Let’s color the facts a little.  The guy is an alleged (and almost certainly is a) terrorist.  He left the country some years ago for Yemen and is allegedly involved with “Al Qaeda in the Arabian Peninsula.”

Judges have a lot of “doctrines” or rules for what cases get decided and how.  While this case involved several doctrines, the one of interest concerns “political questions.”  Overly simply put, courts will refrain from judging the conduct of elected officials – sometimes.  One of the areas of conduct that courts shy away from is national security, given that they feel ill equipped to make judgments.  To borrow a phrase from another area of law, the trial judge decided that he shouldn’t engage in “prior restraint” by second guessing the executive branch’s conclusion that the guy was such a threat to national security that he should be summarily killed.

There’s an existing body of law that allows soldiers to kill enemy soldiers and government agents to kill others who pose an immediate threat.  The logic is similar to validating a policeman’s judgment in shooting someone under some circumstances.  This decision though seems to greatly expand such discretion and pretty much do away with the requirement of an immediate threat.

“”The court recognizes the somewhat unsettling nature of its conclusion – that there are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas is constitutionally committed to the political branches and judicially unreviewable,’ Bates wrote in his 83-page decision. ‘But this case squarely presents such a circumstance.’”

The judge “said the case would require him to ‘understand and assess the capabilities of the [alleged] terrorist operative to carry out a threatened attack, what response would be sufficient to address that threat, possible diplomatic considerations that may bear on such responses, the vulnerability of potential targets that the [alleged] terrorist may strike, the availability of military and nonmilitary options, and the risks to military and nonmilitary personnel in attempting application of non-lethal force.’”

Yes; but, isn’t that what judges do?

The terrible irony is that if the government wanted to tap the guy’s phone or computer, it would have to get a warrant.  Take his life?  Whatever they decide is just fine with the judge because determining whether they are justified is just too much work.

There’s a cliché that bad facts make bad law.  Refusing to look at the facts makes worse law.


J said...

I agree with your concern about the inconsistency of wire tap vs hit.

Solution: Change the wire tap rules.

ps - Merry Christmas

Dave said...

Made me laugh J. And, back at you.