Tuesday, May 27, 2014

Is US Domestic Case Law Providing a Moral Hazard for Covert Killings of Americans Overseas?

This article first appeared on The Epoch Times    


     One of the most controversial decisions of the Obama presidency has been his authorization to target and kill Americans overseas who decide to take up arms against the United States.  In 2011, a drone strike killed Anwar al-Awlaki, an American citizen who moved to Yemen and became a high level cleric within al-Qaeda's Yemeni affiliate, which has been deemed by the United States to be al-Qaeda's most dangerous branch.  According to US officials, Awlaki was too dangerous to be left alive as his work and teachings were radicalizing others to join in jihad.

     Awlaki's father, who is a Yemeni citizen, sued three members of the United States government for damages in association with the "unlawful" killing of his son and sixteen year old grandson who was also killed some time after Awlaki in an apparent arrant drone strike where he was "collateral damage" meaning he was not a target.  A federal judge ruled that, among other things, Awlaki's father could not sue individual members of the government who were carrying out actions associated with war under previous case law.  When addressing Fourth Amendment claims, the federal judge ruled, "Unmanned drones are functionally incapable of 'seizing' a person; they are designed to kill, not capture. As the decedents were not 'seized,' Plaintiffs have not stated a Fourth Amendment claim."  Additionally, concerning Fifth Amendment substantive and procedural due process claims, the federal judge stated:
Plaintiffs allege both procedural and substantive due process claims. They allege a procedural claim by asserting that Anwar Al-Aulaqi was executed without charge, indictment, or prosecution.  They also allege a substantive due process claim by asserting that Defendants killed Anwar Al-Aulaqi with deliberate indifference to his constitutional right to life, both outside of armed conflict and at a time when he did not present a concrete, specific, and imminent threat to the United States...The Court does not opine that Anwar Al-Aulaqi was entitled to notice and a predeprivation hearing...or that the drone killing of Anwar Al-Aulaqi "shocks the conscience."
      To clarify each type of due process claim in the words of the district judge's opinion:

To state a procedural due process claim, a plaintiff must establish that he had a protected interest in life, liberty or property, and that government officials knowingly, and not merely negligently, deprived him of that interest, without notice and an opportunity to be heard "at a meaningful time and in a meaningful manner."  To state a substantive due process claim, a plaintiff must assert that a government official was so "deliberately indifferent" to his constitutional rights that the official’s conduct "shocks the conscience." Conduct "shocks the conscience" when it was "intended to injure in some way."

      The issue of law enforcement's duty to protect especially when facing an "imminent threat" has been used in some instances to usurp power in ways previously unseen in the international realm.  On the domestic front, the Supreme Court ruled today, that law enforcement officers who shot and killed individuals involved in a high speed car chase did not violate the Fourth Amendment.  In Plumhoff et al v. Rickard, Mr. Rickard lead police officers on a high speed chase and after stopping briefly when his vehicle struck a police cruiser, Mr. Rickard continued his reckless behavior attempting to free his vehicle in order to continue to flee the police.  As Mr. Rickard fled, police officers fired between 12 and 15 shots at his vehicle, which killed him and his passenger.  Mr. Rickard's daughter sued on Fourth and Fourteenth Amendment grounds.  Mr. Rickard's daughter's Fourth Amendment claims were that the Fourth Amendment did not permit law enforcement officers to use deadly force to terminate the car chase and secondly, that the force officers used was excessive, even if such force was authorized as officers fired up to 15 rounds.

     When addressing both issues, the Court determined that first, under previous case law, an officer who used methods that put the driver of a high speed chase at risk was lawful as the Court "held that a 'police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.'"  As Justice Alito, who wrote today's opinion, noted, "During that chase, Rickard passed more than two dozen other vehicles, several of which were forced to alter course."  Secondly, when addressing the excessive force used by the number of shots fired to terminate the chase, Justice Alito stated, "in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended...Here, during the 10-second span when all the shots were fired, Rickard never abandoned his attempt to flee."

     The moral hazard established by the courts in terms of protecting citizens from "imminent threats" has the potential to be expanded as more and more counterterrorism operations are carried out abroad.  Additionally, according to a Justice Department White Paper, which justifies the killing of American citizens abroad, part of the criteria is that the individual poses and imminent threat and capture is infeasible.  In a riveting debate questioning if, the "President Has Constitutional Power to Target Americans," long time civil rights advocate Allen Durshowitz stated the president has this authority in domestic situations as well as in foreign situations and provided the hypothetical that if a rouge radical was hold-up in the Rocky Mountains, with capture being infeasible and the individual posing an imminent threat, it would be lawful to target that individual.

     In today's Supreme Court opinion, the Court compared the situation in Plumhoff to a previous case in which, "an officer on foot fired at a driver who had just begun to flee and who had not yet driven his car in a dangerous manner. In contrast, the officers here shot at Rickard to put an end to what had already been a lengthy, high-speed pursuit that indisputably posed a danger both to the officers involved and to any civilians who happened to be nearby."  In terms of the Obama administration's policy of targeting Americans abroad, the administration's justification for such action is one must pose an imminent threat, their capture is infeasible, and the operation will be in concert with international law.  However, each one of these three prongs is up to interpretation of executive branch lawyers meaning their definitions can be stretched.  In Plumhoff the use of deadly force was warranted in the Court's opinion because the driver refused to stop once he had struck a police cruiser and attempted to continue reckless behavior potentially endangering the lives of others.  This logic can be applied to the use of drones in that their primary use for deterring terrorist activity is loss of life.  Under the legal advice of the president's advisers, this lethal force is lawful.  Under Supreme Court precedent, matters of international relations are non-justiciable, meaning the court does not have jurisdiction, and given today's ruling, public safety supersedes the safety of one who operates recklessly, which again, can provides rationale for targeted killings.   

     It is most likely going to take a Supreme Court decision to clarify the drone war carried out by the executive branch.  However, two major concerns provide a bulwark to such action: 1) it is nearly impossible to gain standing to sue as precedent states one cannot sue a member of the government for carrying out actions of war and claiming a legal injury as a result of such strikes is difficult; as in the case of Mr. Awlaki's father, the district court ruled that as a non-US citizen, he did not suffer from any US constitutional deprivation, and; 2) case law continues to provide a moral hazard that the administration is sure to expand upon with rulings that tend to favor action that protects citizens against those who act recklessly.                

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