So Much for the Rule of Law

Tuesday I received an email from Vince Warren, Executive Director of the Center for Constitutional Rights (CCR), announcing that the CCR and the ACLU had filed suit challenging, “the legality and constitutionality of a licensing scheme that requires lawyers to seek government permission to represent individuals that same government intends to kill.” This morning while driving to work I heard Vince describe the same action on NPR. The report concluded that the suit probably wouldn’t get very far, because the Obama Administration would invoke the “State Secrets Doctrine” and the courts were likely to agree that allowing such a suit to go forward would damage our national security.

The Obama Administration claims it has the right, without any court process, to place anyone, including an American citizen, on the CIA’s “capture or kill” list. Nasser al-Aulaqi has retained CCR and ACLU attorneys to represent his son, Anwar al-Aulaqi, an American citizen who is hiding in Yemen, because Anwar has been placed on the CIA’s list. The Obama Administration is not only trying to kill Anwar al-Aulaqi, but also claims that only lawyers who the administration licenses can represent him. The CCR did not receive its “license” until the day after it filed suit.

The Obama Administration says it has taken this action because, among other things, it learned that Anwar Al-Aulaqi aided the young Nigerian man who planned to blow up an airplane in the U.S. last Christmas. The government claims it has the authority to capture or kill Anwar Al-Aulaqi because he has joined the enemy, and Yemen is one of many battlegrounds of its global war against Al Qaeda.

I find the government’s position repulsive, but I’ll leave the legal discussion to Vince Warren and the CCR. [Find more info including fact sheets and legal documents, on the CCR's site here.] I will focus instead on how the President Obama is playing fast and loose with the rule of law.

I’ve had countless discussions about my level of disappointment with Obama’s policies since he took office. A number of friends say that although they don’t necessarily support his actions on Iraq, Afghanistan, the economy or the environment, Obama ran as a centrist Democrat, and in general he’s done what he said he was going to do. In other words, “Don’t blame him for your misplaced wishful thinking.” However, Obama made one solemn pledge that I know he has not kept.

Obama took office promising to re-establish the supremacy of the rule of law. His administration’s position in the Al-Aulaqi case is the latest example of the mockery he has made of that promise. From Guantánamo to Bagram, from ongoing torture, to cover-ups of past torture and murder, to drone attacks on innocent civilians, this administration has used the same logic the Bush administration did to place itself above the law.

By putting Anwar Al-Aulaqi on this list, although he is far from any active battlefield, the administration is claiming in Vince Warren’s words: “the extraordinary power to unilaterally deem people terrorists and authorize their killing, off the battlefield in countries around the world, without any fair process or oversight.”

If we are fighting a “global war on terror,” then a “battlefield” could be any place on earth. And if the Executive Branch of government can, without oversight, place anyone whom it deems to be a terrorist on the “capture or kill” list, then no one, anywhere is safe. How does this restore the rule of law? In fact, far from fighting terrorism, our government seems to be developing justifications for practicing it.

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