The real test of your commitment to fundamental rights comes when the exercise of those rights arouses strong antagonistic feelings in you. Are you willing to defend the free speech rights of people who say things you find hateful? Are you willing to defend due process rights for those whom you despise? Why I support organizations like the American Civil Liberties Union (ACLU) is precisely because of their commitment to defend those rights for all people without exception.
Take the case of the US-born Muslim cleric Anwar al-Awlaki, now supposedly hiding in Yemen. He has been accused of inciting violence against US targets and recruiting people to carry out those actions, such as Major Nidal Hassan and the Christmas Day bomber. Obama has, without any formal charges or trial but simply by unilaterally asserting the existence of extraordinary powers, passed a death sentence on him. In other words, any agency of the US government can kill Awlaki anywhere at any time using any means, no questions asked. His family in the US is naturally alarmed at this development. Glenn Greenwald describes what happened when they sought legal help.
Early last month, the ACLU and the Center for Constitutional Rights were retained by Nasser al-Awlaki, the father of Obama assassination target (and U.S. citizen) Anwar al-Awlaki, to seek a federal court order restraining the Obama administration from killing his son without due process of law. But then, a significant and extraordinary problem arose: regulations promulgated several years ago by the Treasury Department prohibit U.S. persons from engaging in any transactions with individuals labeled by the Government as a “Specially Designated Global Terrorist,” and those regulations specifically bar lawyers from providing legal services to such individuals without a special “license” from the Treasury Department specifically allowing such representation.
On July 16 — roughly two weeks after Awlaki’s father retained the ACLU and CCR to file suit — the Treasury Department slapped that label on Awlaki. That action would have made it a criminal offense for those organizations to file suit on behalf of Awlaki or otherwise provide legal representation to him without express permission from the U.S. Government.
It’s rather amazing that the Federal Government asserts the right to require U.S. citizens and American lawyers to obtain government permission before entering into an attorney-client relationship — all because these officials decided on their own, with no process, to call the citizen a “Global Terrorist.” It’s difficult to imagine a more blatantly unconstitutional power than that. What kind of an American would think the Government has the power to decide whether citizens may or may not be represented by lawyers?
Given the lack of outrage, apparently most Americans think that the right to a lawyer is a negotiable one. The ACLU and CCR filed a lawsuit challenging the constitutionality of requiring a license from the Treasury department to represent a client and, perhaps fearing a defeat, the government issued a license making that lawsuit concerning licensing moot. So the case against the right of Obama to claim for himself the right to pass death sentences can proceed. But the bizarre nature of this case does not end there.
The Awlaki lawsuit… will likely face serious obstacles, beginning with the same warped tactic which both the Bush and Obama administrations have repeatedly invoked to shield illegal surveillance and torture from judicial scrutiny: first, refuse to confirm whether such a program exists (notwithstanding public admissions that it does) on the ground such matters are “state secrets,” and then, with Kafkaesque perfection, insist that the lawsuit must be dismissed because (thanks to the Government’s refusal to acknowledge it) there is no evidence that Awlaki is subject to such an assassination program and thus lacks “standing” to sue.
Shades of Catch-22!
Bill Quigley, a professor of law at Loyola University and legal director of CCR explains why they sued to represent Awlaki.
What this case is really about is not Aulaqi but about our government disregarding the rule of law.
There are many reasons we can argue that premeditated killing by the government off the battlefield is illegal. The rule of law guaranteed by the US constitution binds even the President of the US and the military. Our constitutional system of checks and balances does not allow the executive branch of government to just decide in secret that they are going to kill people. The government certainly could not just execute him if he was in the US. The US would not allow other governments to come here and assassinate someone they opposed. And the US would never just fire drone strikes into the UK, China, Russia or Australia to kill someone. Yemen is over a thousand miles away from the battlefield of Afghanistan or Iraq. So why would anyone think it is legal to assassinate a US citizen in Yemen?
Despite these questions, Aulaqi has been the target of several unsuccessful drone strikes as the US military and CIA are actively trying to kill him.
These are all issues that should be decided in a court of law. That is why we are filing this suit.
His father, Nasser, said it best. If the government has proof his son violated the law, then they should charge him in public and let the law take its course.
If the government can find him to assassinate him, they can find him to bring him to justice.
The right to go to court to challenge the government is a core US value. It is important that we win the right to represent him no matter how controversial he is. Otherwise the government can deprive citizens of their right to a lawyer at the exact same time as they are trying to kill them. The courts should make these decisions and people deserve the right to have lawyers try to challenge the government. (my emphasis)
This case and the one concerning Yahya Wehelie reveal an emerging pattern. The government first claims for itself extraordinary powers. When those at the receiving end of its abusive treatment are able to muster the resources and expertise to strongly mount a legal challenge to the constitutionality of those claims and it looks like the government will lose in the courts, it quietly drops its opposition in that particular case without abandoning the policy itself. This makes the legal case moot and not subject to judicial review, thus avoiding the risk of a judge ruling that the action is unconstitutional.
The problem is that there are many people who are suffering at the hands of the government who do not have the means to mount this kind of challenge and so they languish. This is why although legal challenges are a partial solution, the only effective counterweight to government abuse is widespread public anger. As Judge Learned Hand once said, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”
POST SCRIPT: Those awful activist judges