Monday, April 7, 2014

This is Justice?

I'm not a lawyer.  But I'm a very concerned citizen, especially after the very recent ruling in a lawsuit brought by the families of three drone strike victims.  In Al-Aulaqiu v. Panetta  handed down by Judge Collyer, the suit was dismissed. This hasn't gotten much coverage, so if you haven't heard of it, here's a general article at The Guardian.  For some analysis, here are two good sources: 1) Marcy Wheeler's article at the Empty Wheel blog found here,  and an article on the Bivens aspect of the ruling by Steve Vladeck, found here .

I find this ruling very troubling.  It gives a pass for the government to kill, assassinate whatever American citizen - with no due process and often on dubious intelligence.  Not only that, the actual process of targeting can be very flawed, as shown by the revelations in this piece from The Intercept.

It decidedly ignores the Fourth Amendment. Judge Collyer noted drones are to kill, not seize.  But as Steve Vladeck points out, the decision of Tennessee v. Garner specifically says lethal force is a violation of the Fourth Amendment.  In that context I don't see how this recent decision can be based on sound reasoning.

I have not seen much of anything written about the implications of this ruling to the separation of powers and checks and balances of our three branches of government.  It seems to me - and again a big disclaimer, I'm no lawyer - that this ruling is the Judicial Branch shirking a duty to check the overreach and unconstitutional activity of the Executive Branch.  Oh, yes - I did see in surfing several news articles about this that the Judge herself said something to the effect of "The executive is not a check on the executive."  And she comes up with this decision?  Any knowledgeable lawyer reading this (are you there, Lois?) should feel free to comment; I'd love to hear your take on this!

I definitely find myself in sympathy with the reasoning of the families' attorneys from the ACLU and the Centre for Constitutional Rights (you can quickly find and read their comments in the general article at The Guardian).  I'm not sure if this will be or can be appealed.  I thought someone posted - maybe at Marcy Wheeler's blog? - that they hoped it wouldn't stand up.  So there we are.  With the way some of these courts are ruling these days, even on appeal, I'm not sure how hopeful I am for a better result.  It really makes one shake one's head and wonder: how did we get here?

UPDATE:  In case anyone wants a reference to Judge Collyer's remark about the 'executive' - go here.

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