Say your government put out a notice that it was going to kill you, wherever you are (at home or abroad, doesn’t matter). You are not on a field of battle or in a place where your country is on a field of battle or at war. Say further that obviously because you can’t go to court to appeal this notice of assassination by your government that your father attempts to go to court on your behalf. Finally, say that in response to that, your government says that the case can’t come up because of “state secrets.”
Thanks to the US 9th Court of Appeals (as I understand it, a relatively liberal court) there is recent legal precedent for this.
This is not a made up example, but rather a real case involving an American citizen in Yemen, Anwar al-Awlaki.
The lawsuit was filed by Mr. Awlaki’s father, Nasser al-Awlaki, who is represented by theAmerican Civil Liberties Union and the Center for Constitutional Rights. It contends that designating a United States citizen for killing outside of a war zone, without an imminent threat, amounts to an extrajudicial execution, and it disputes the notion that battlefield law applies far from Afghanistan.
There is widespread agreement among the administration’s legal team that it is lawful forPresident Obama to authorize the killing of someone like Mr. Awlaki — regardless of his citizenship — if he is found in an ungoverned place or in a country that grants permission. (The details of any arrangement with Yemen are unclear.)
Mr. Awlaki has not been indicted or gone to trial to prove that he played an operational role in terrorist attacks.
You can consider the irony of that last statement.
Invocation of state secrets is not new to the Obama administration, but it is certainly arresting that it has used it well beyond the levels of the Bush administration, which liberals used to like excoriating for its human rights abuses.
I was at a screening on Tuesday of the documentary “Americans on Hold“, and in the discussion that followed, hosted by a ACLU Georgia member, we were encouraged to pursue legal remedies (eg the End Racial Profiling Act).
But for state secrets there are already statutes which override it according to Scott Horton in Harper’s magazine:
the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes. Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the U.S. Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.
Elsewhere, other courts have made more progress, but I think it will be extremely difficult to make headway on these cases until American courts join in with them. Or until President Obama is persuaded to act differently.