Gavel Grab

A New York Times editorial seeks rules for the targeted killing of terrorists overseas — especially if they are American citizens — when the terrorists are not on a battlefield.

More than a year ago, a Times editorial judged it necessary to follow the rule of law and seek judicial review before targeting a U.S. citizen for assassination,  citing the recent armed drone killing of Muslim cleric Anwar al-Awlaki in Yemen (see Gavel Grab).

This week, the latest editorial also addresses another option:

“[I]f an American citizen operating abroad is targeted, due process is required. We have urged the formation of a special court, like the Foreign Intelligence Surveillance Court, that could review the evidence regarding a target before that person is placed on a kill list. Otherwise, the government should establish a clear procedure so officials outside of the administration are allowed to pass judgment on assassination decisions.”

A New York Times editorial, entitled “A Post-9/11 Conundrum,” juxtaposes a federal judge’s ruling on indefinite detention in the name of national security, and a House vote to extend an expansion of federal authorities’ power to conduct warrantless surveillance.

“For 11 years, Americans have struggled to reach a sensible legal balance that protects both national security and civil liberties — an existential challenge made harder by the last president’s wild excesses and abuses of power in the name of combating terrorism. This week, a vote in Congress and a decision by a federal judge, Katherine Forrest, made starkly clear how much that remains a work in progress,” the editorial said.

U.S. District Judge Forrest (photo) struck down a  controversial portion of the recently enacted National Defense Authorization Act (see Gavel Grab). The disputed provision authorizes indefinite military detention for people considered to have “substantially supported” al Qaeda, the Taliban or “associated forces.”

While the editorial had questions about her ruling, it said she was “moving in the other direction” from that taken by Congress.

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U.S. District Judge Katherine Forrest of Manhattan has struck down a highly controversial portion of the recently enacted National Defense Authorization Act. The disputed provision authorizes indefinite military detention for people considered to have “substantially supported” al Qaeda, the Taliban or “associated forces.”

Political activists, scholars and journalists challenging the law have voiced legitimate fears  that they could be detained indefinitely over exercises of their First Amendment rights, the judge said, according to an Associated Press article.

“First Amendment rights are guaranteed by the Constitution and cannot be legislated away,” Judge Forrest wrote. “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”

Judge Forrest had issued a preliminary injunction, blocking enforcement of the provision, earlier (see Gavel Grab). Her latest ruling is likely to be appealed to a higher court.

A federal judge has issued a preliminary injunction blocking enforcement of part of the recently enacted National Defense Authorization Act. The highly controversial provision authorizes indefinite military detention for people considered to have “substantially supported” al Qaeda, the Taliban or “associated forces.”

A group of civilian activists and journalists contended that they fear detention under the provision, which is part of legislation that President Obama signed in December. U.S. District Judge Katherine Forrest of New York (photo above) ruled in their favor, according to a Reuters article.

“In the face of what could be indeterminate military detention, due process requires more,” Judge Forrest said. She said a portion of the law  has a “chilling impact on First Amendment rights.” She noted, according to a Bloomberg article, “An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.”

In Salon, Glenn Greenwald praised Judge Forrest’s decision as “amazing” and “a sweeping victory for the plaintiffs,” as it rejected the chief arguments advanced by Obama’s Department of Justice. Greenwald elaborated: Read more

The press and public have a constitutional right to observe proceedings of military commissions trying terror suspects, says a lawyer representing news organizations seeking an open proceeding at Guantanamo Bay.

At Guantanamo, “The values served by open criminal proceedings — public acceptance of the verdict, accountability for lawyers and judges, and democratic oversight of our government institutions — apply … with particular urgency,” lawyer David A. Schulz writes in a New York Times op-ed.

Schulz recently raised similar issues in arguing before a military judge that testimony by a captive on how the CIA interrogated him should not be closed. The judge then mooted the issue for the time being, according to a McClatchy Newspapers article. The defendant, Abd al-Rahim al-Nashiri, is accused of masterminding al-Qaida’s 2000 suicide bombing of the USS Cole, in which 17 sailors died.

“The thought of a Guantánamo defendant taking the stand to testify about his treatment, in his own words, may not be appealing for many reasons,” Schulz writes in his op-ed. “But we must be prepared to lay out all the facts, wherever they lead, if we are to demonstrate to the world that the verdicts ultimately rendered at Guantánamo are justifiable, however they turn out.”

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A New York Times editorial decries the steps leading up to a planned trial of the accused 9/11 terrorists before a military tribunal as “The Road We Need Not Have Traveled.”

Last week, a senior Pentagon official authorized the trial for Khalid Shaikh Mohammed, the accused mastermind of the terror attacks, and four co-defendants. It likely will be held at Guantánamo Bay (see Gavel Grab).

The editorial labels the military tribunal as “constitutionally flawed” but devotes more attention to what it considers the mistakes of the George W. Bush and Obama administrations, as well as Congress passing a law “prohibiting the use of federal money to try any Guantánamo prisoner in federal court.” The editorial concludes with a references to a speech delivered last week by Brig. Gen. Mark Martins, the chief military prosecutor:

“We hope General Martins’s commitment to justice will persuade a highly skeptical world to accept the legitimacy of these trials; convicting and executing the prisoners after a tainted trial would be a disaster. But after all that has happened, even the best-managed trial will not be able to change the fact that this country has in the last decade accepted too many damaging and unnecessary changes to its fundamental principles of justice and human rights.”

Since the terrorist attacks of 2001, the USA PATRIOT Act and other policies have weakened the historic power of courts to protect our rights and check possible government abuses, Justice at Stake says on its web site. To learn more, see Justice at Stake’s “Courting Danger” report.

Khalid Shaikh Mohammed, the accused mastermind of the Sept. 11, 2001 terror attacks, and four co-defendants will face murder and terrorism charges at a new trial before a military commission, likely to be held at Guantanamo Bay.

The trial was authorized by a senior Pentagon official on Wednesday, according to a Washington Post article.

Charges lodged against them earlier were dropped in 2009 when the Obama administration planned to close the military detention facility in Cuba, eliminate the military commission process for trying terror suspects and prosecute the five in civilian courts in New York. Under a backlash of bipartisan opposition, however, that plan was withdrawn (see Gavel Grab). The charges were refiled last June.

There has been a protracted, and heated, debate over trying the five men in civilian courts versus military tribunals.

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After Attorney General Eric Holder’s recent legal justification of killing American citizens suspected of terrorism, President Obama has become the first president to claim this authority without judicial involvement or oversight, according to a New York Times editorial.

A president has the right to order lethal force “against conventional enemies during war, or unconventional enemies in unconventional wars,” the editorial writes. However, it argues that there should be convincing evidence of an imminent threat when the enemy might be a U.S. citizen.

The Times editorial said the administration has refused to acknowledge the existence of a Justice Department memo”providing legal justification for killing American citizens.” President Obama would not have ordered a killing without receiving an opinion from the Office of Legal Counsel, the editorial writes.

It also questioned Holder’s rejection of any judicial supervision of a targeted killing. Holder has argued that these operations require high levels of secrecy, and that judicial process and due process guaranteed to individuals by the Constitution “are not one and the same” (see Gavel Grab). The editorial challenges Holder’s rationale, stating that the judiciary has the power to interpret the meaning of the Constitution, and make sure the executive branch applies it properly.

The editorial concluded that the administration should “seek a court’s approval before killing an American citizen.” President Obama should publish the Office of Legal Counsel memo on targeted killings, and not withhold vital information from the public, the editorial says.

To learn more about protection of civil liberties in troubled times, see the JAS issues page on this topic.

Attorney General Eric Holder’s recent legal justification of the targeted killing of suspected terrorists, including U.S. citizens, is deeply troubling, according to a Los Angeles Times editorial. 

On Monday, Holder laid out in a speech the Obama administration’s legal reasoning on these targeted killings (see Gavel Grab). The Times editorial said Holder’s speech failed to silence debate over the drone-based killings and left the editorial board “perhaps more concerned that this nation is heading down a dangerous path.”

The editorial specifically questioned as “extremely vague” Holder’s definition of those circumstances when a terrorist leader poses an “imminent threat” and targeted killing is justified because it is not feasible to seek judicial review of a kill order.

It also challenged Holder’s statement that the U.S. can target anyone it judges a terrorist when he is in a country the administration considers ”unable or unwilling to deal effectively with a threat to the United States.” The editorial concluded:

“We have to wonder how supporters of this position would feel if another country such as China or Russia were to take this approach in killing its enemies around the world. And we’re more than a little disappointed at the way Democrats (including Holder and President Obama) who criticized President Bush’s broad assertions of presidential powers in the war on terrorism have changed their tune now that a Democrat is in the White House.”

To learn more about protecting civil liberties in troubled times, see the JAS issues page on the topic.

Attorney General Eric Holder said in a speech at the Northwestern University School of Law that American citizens who are suspected of plotting to kill other Americans in terrorist attacks are not protected by the U.S. Constitution.

“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces,” Holder said on Monday, according to a New York Times article. “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

It was not the first time an Obama administration official had addressed the targeted killing of citizens. But, according to the Times, “[I]t was notable for the nation’s top law enforcement official to declare that it is constitutional for the government to kill citizens without any judicial review under certain circumstances.” Holder was addressing circumstances when capturing terror suspects alive was not feasible. Read more