A version of this article was originally posted by CCR Executive Director Vincent Warren on Huffington Post on November 11, 2010
Hammurabi, Moses, Justinian and Solon -- four titans of justice -- looked on from their larger than life white marble statutes along the back wall over the judge's bench. They saw the opening arguments in the constitutional challenge to the power of the president and the CIA were held in the imperial federal ceremonial courtroom in Washington D.C.
At issue is the power of the US president to order the extrajudicial killing of US citizen Anwar Al-Aulaqi who is reportedly in Yemen. Nasser Al-Aulaqi, Anwar's father, filed this case to stop the execution of his son.
The case asked the court to stop the president and other high ranking government officials from ordering the assassination of Al-Aulaqi unless he poses an actual imminent threat to the U.S. and also asked the court to order the U.S. to disclose the criteria that are used in determining whether the government will carry out targeted killing of a U.S. citizen. Lawyers argued that extrajudicial killing of U.S. citizens by the government violated the 4th and 5th Amendments to the U.S. Constitution.
The government says they have secret evidence their target is a terrorist and there is no role for the courts in this matter at all. Lawyers for President Obama claim absolute unilateral power to execute U.S. citizens in the war on terror anywhere in the world without oversight from any other branch of government if the Executive branch designates the person as a terrorist.
Challenging the power claimed by the president were lawyers from the Center on Constitutional Rights and the American Civil Liberties Union.
Judge John Bates, a 2001 appointee of President George W. Bush, gave each side a full hour to present their arguments. The judge got both sides to agree that no case like this has ever been decided before. He appeared skeptical of the arguments of both sides and peppered both with difficult questions.
Douglas Letter, Terrorism Litigation Counsel for the Department of Justice, argued for the government. He stressed their position that the power of the president over the military and in the conduct of war was a vital constitutional grant that the judiciary should not interfere with.
Jameel Jaffer of the ACLU and Pardiss Kebriaei of the Center for Constitutional Rights repeatedly underscored the life or death nature of the case, the constitutional issues at hand, and the fact that no court had ever given this kind of unreviewable authority over life and property of U.S. citizens to the government.
The judge allowed the government to start but challenged their position immediately.
How is it, the judge asked, that surveillance of a U.S. citizen overseas requires review by a judge; seizure of overseas property of a U.S. citizen can be challenged in front of a judge; but killing a U.S. citizen overseas cannot be reviewed by a judge?
The government made several technical arguments and two substantive ones. The technical arguments were that a father cannot bring a case for his son and in this case there is no legally recognizable harm to the father just because his son is on a kill list -- the existence of any such list and whether he is on it or not they neither admit nor deny.
The substantive arguments were that the court could not decide this case because it involves state secrets and that in time of war there is no role for the judiciary at all.
Government Asserts State Secrets: Terrorism, Trust Us on This
The government officially asserted a state secrets privilege which protects them from disclosing the information that they have on al Aulaqi and whether he is being targeted for extrajudicial killing. Disclosure of this information, even to the lawyers who are trying to stop the government from executing him, is not allowed under their argument. Disclosure, they argue, would result in "significant harm to the national security of the U.S."
This argument is odd, CCR and ACLU lawyers argued, for several reasons.
First, because it is government officials who have broadcast by leaks the fact that Al-Aulaqi is on a "kill list" apparently because release of the information suited their purposes at that time.
Second, the government assures us they have secret evidence that Al-Aulaqi has committed serious crimes. But if the government actually prosecuted him instead of just killing him, they would have to disclose all the information they claim is secret. So they argue they can execute him without trial based on secret information that they would have to disclose if they prosecuted him at a trial.
If they win on their "trust us" theory, the government can avoid all judicial scrutiny by bypassing trial in favor of summary execution.
Government: No Role for Judiciary in Determining Fairness of Execution of U.S. Citizen
The government also argued that there is no role for the judicial branch of government in a foreign military campaign. The courts lack the ability to determine threats to national security, they assert, and have neither the authority nor the expertise to make these decisions.
CCR and ACLU lawyers pointed out that the courts have been doing exactly that for years in making decisions about the inmates at Guantanamo -- determining connections between individuals and al Qaeda and whether or not prisoners present any threat to national security - mostly deciding they do not.
Ultimately, the government argued that there was no role for the court in this matter at all and the case should be dismissed.
At the conclusion of about three hours of argument, Jaffer summed up by saying that the Executive branch of the government claimed the right to execute U.S. citizens without any review by any court as long as they made a secret determination that the person was a terrorist -- an assertion called "ridiculous" and "absurd" by the government.
One is left to wonder what decision Hammurabi, Moses, Justinian and Solon would issue? Would they agree that the president has an unreviewable license to kill U.S. citizens in the war on terror or would they force the government to abide by the requirements of the Constitution which bind everyone else?
The judge said he would issue a decision in a few weeks.