WASHINGTON - Serious issues regarding constitutional law rose to the surface on Friday as a US federal judge dismissed a court case against the government by families of three Americans killed in US drone strikes in Yemen.
In a 41-page opinion, Judge Rosemary Collyer of Federal District Court for the District of Columbia ruled that courts should hesitate before deciding to hold a government official personally responsible for violating a citizen’s constitutional rights in the context of a wartime action.
“The persons holding the jobs of the named defendants must be trusted and expected to act in accordance with the US Constitution when they intentionally target a US citizen abroad at the direction of the president and with the concurrence of Congress,” Judge Collyer wrote. “They cannot be held personally responsible in monetary damages for conducting war.”
She ruled that the Americans killed by a US drone strike in Yemen in 2011 had no recourse to the Fourth Amendment of the US Constitution, as the legal team for the families had argued, because the US military did not make an effort to restrain the three individuals who were killed. The Fourth Amendment explicitly states that the “right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated.”
Unmanned drones are functionally incapable of ‘seizing’ a person; they are designed to kill, not capture,” she wrote. Although Collyer wrote that the plantiffs presented a reasonable argument that the US government violated the American right to due process, “the court finds no available remedy under US law for this claim.”
The judge suggested it was not within the bounds of the courts to rule against current military planning.
Imposing penalties on particular government officials in this case “would impermissibly draw the court into the heart of executive and military planning and deliberation,” she wrote. It would “require the court to examine national security policy and the military chain of command as well as operational combat decisions.”
“In this delicate area of war making national security and foreign relations the judiciary has an exceedingly limited role.”
Killed in the drone strike was New Mexico-born Muslim cleric Anwar al-Awlaki, who, according to US officials, was a member of Al-Qaida’s Yemen affiliate, and Samir Khan, a naturalised US citizen who had moved to Yemen in 2009.
Al-Awlaki’s 16-year-old son Abdulrahman al-Awlaki was also killed in the attack.
The question as to who should be held responsible for the extrajudicial murder of American citizens without due process in the US legal system seems to have been left hanging in the balance of the legal scales.
“The question presented is whether federal officials can be held personally liable for their roles in drone strikes abroad that target and kill US citizens,” Collyer commented in her opinion. “The question raises fundamental issues regarding constitutional principles, and it is not easy to answer.”
Collyer said that the US officials named as defendants in the case, which included Leon Panetta, the former defense secretary and CIA chief, and David Petraeus, also a former CIA chief, as well as a four-star general, “must be trusted and expected to act in accordance with the US Constitution when they intentionally target a US citizen abroad at the direction of the president and with the concurrence of Congress.
“They cannot be held personally responsible in monetary damages for conducting war.”
The American Civil Liberties Union and the Center for Constitutional Rights served as legal representation for the families.
“This is a deeply troubling decision that treats the government’s allegations as proof while refusing to allow those allegations to be tested in court,” said ACLU lawyer Hina Shamsi. “The court’s view that it cannot provide a remedy for extrajudicial killings when the government claims to be at war, even far from any battlefield, is profoundly at odds with the Constitution.”
Meanwhile, Center for Constitutional Rights lawyer Maria LaHood said the judge “effectively convicted” Anwar al-Awlaki “posthumously based solely on the government’s say-so.” LaHood said the court found that the constitutional rights of the murdered individuals “weren’t violated because the government didn’t target them.”
“It seems there’s no remedy if the government intended to kill you, and no remedy if it didn’t. This decision is a true travesty of justice for our constitutional democracy and for all victims of the US government’s unlawful killings,” LaHood argued.
The United States is facing tough international criticism over its drone program, which was created to attack suspected terrorists in places like Pakistan and Yemen. Last month, the UN Human Rights Committee, which is comprised of 18 independent experts, called on the Obama administration to evaluate its use of the aerial attack vehicles to assassinate militants abroad, as well as provide information as to how it chooses its targets.
The US should “revisit its position regarding legal justifications for the use of deadly force through drone attacks,” investigate any abuses and compensate victims’ families, the watchdog added in its conclusions.
The Obama administration significantly increased the number of drone strikes after the president took office in 2009, but the attacks have begun to decrease in the last year.
Last month, civil rights groups sounded the alarm when US Attorney General Eric Holder said it was “hypothetically possible” for the US to unleash a drone attack against an American on US soil.
“It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the president to authorize the military to use lethal force within the territory of the United States,” Holder wrote in a letter dated Match 4th and disclosed by Sen. Rand Paul of Kentucky.