DOJ: Some Constitutional Rights Can't Be Tested In Courts, Like Our Ability To Kill You With A Drone

from the say-what-now? dept

Another day, another crazy claim from the DOJ. The latest concerns a legal challenge to the administration's ability to use drone strikes against US citizens abroad. The US has been arguing that this issue cannot be tried in court because it's outside the court's jurisdiction and because of national security reasons. Most ridiculously of all, the DOJ has argued that there are Constitutional rights that cannot be challenged in court:
Deputy Assistant Attorney General Brian Hauck argued there was a difference between having a constitutional right—which he said could be protected by the executive and legislative branches—and being able to make constitutional claims in court.
Think about that statement for a second. It's not just legally wrong, it's horrifying. Thankfully, Judge Rosemary Collyer found this claim equally bizarre.
"I'm really troubled…that you cannot explain to me where the end of it is," Collyer said. "That, yes, they have constitutional rights but there is no remedy for those constitutional rights."
In case you're wondering, Hauck apparently is relying on the Political Question Doctrine, which tends to be applied very narrowly and is only supposed to mean that courts should not take on cases that present a "political" question rather than a "legal" question. But, a Constitutional issue over whether or not the US government has the right to kill a US citizen like that certainly seems like a legal question, not a political one.

Hauck further argued the executive and legislative branches could be trusted to protect the rights of citizens. In other words: "Hey, courts, don't worry about US drone strikes killing US citizens, Congress and the administration have this one covered." But, um, that's not how it works. We have three branches of government for a reason, and the checks and balances they provide is the key reason. Having an administration that is in charge of using the drone strikes, along with a very compliant Congress, as the only ones capable of determining if the use is appropriate seems to completely ignore the basic premise of the checks and balances of government, especially when it comes to the Constitutional rights of US citizens.
"The problem is, how far does your argument take you?" Collyer said, adding that she found it "a little disconcerting" that the government was arguing that there could be no court review of a decision by the executive and Congress to target American citizens abroad.
It's good to see the judge is concerned, but this case has a long, long way to go, and the administration is going to try as hard as possible to keep this issue out of court entirely.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Digger, Jul 19th, 2013 @ 12:14pm

    Make sure their first targets are themselves..

    The problem will resolve itself with the first 20 or 30 strikes.

     

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  2.  
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    Anonymous Coward, Jul 19th, 2013 @ 12:25pm

    I wonder when the first foreign dissident will be killed on American soil, and the country that does it claims that they were just doing what America would do if the situations was reversed?

     

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  3.  
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    Paul, Jul 19th, 2013 @ 12:27pm

    Tomorrows Headline Today

    Judge Rosemary Collyer was accidentally targeted & killed today when a rogue drone flying overhead "Mistakenly" fired upon her. Deputy Assistant Attorney General Brian Hauc, speaking for the DOJ un-officially commented "That's the end of her "Constitutional Rights"

     

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  4.  
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    RyanNerd (profile), Jul 19th, 2013 @ 12:33pm

    Test killer drone on Snowden in 3..2.1

    That an assassination (drone or no drone) could be ordered against a US citizen just because that citizen is outside of the United States is abhorrent.
    Perhaps the DOJ is thinking of Ed Snowden as their first test target.

     

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  5.  
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    That One Guy (profile), Jul 19th, 2013 @ 1:00pm

    Wrong on so many levels

    'a difference between having a constitutional right... and being able to make constitutional claims in court.

    So you have a right, but you're not allowed to argue for it in court... yeah, at that point it's no longer a right, but merely a 'privilege', and one that can apparently be taken away.

     

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  6.  
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    Jake, Jul 19th, 2013 @ 1:22pm

    Well, technically...

    Technically, a person wouldn't have any standing until they suffered harm, and by that point it would be moot.

     

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  7.  
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    Ronald8472, Jul 19th, 2013 @ 1:39pm

    You have the right to remain... DEAD? How high up in the administration would it have to be to order a drone strike? Perhaps the next intern with a stain on his/her clothing will get their jollies after by blowing something/someone up?

     

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  8.  
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    Anonymous Coward, Jul 19th, 2013 @ 1:42pm

    Re:

    What makes you think they haven't already murdered dozens of 'test subjects' on American Soil (all in the name of national security of course)?

     

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  9.  
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    ezeq, Jul 19th, 2013 @ 1:59pm

    Stand your ground laws now needed!

    We need more stand your ground laws with RPGs and missle launchers. Self-defense against drones means stalking them in the dead of night and making the government drop their Skittles once in a while....

     

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  10.  
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    DCL, Jul 19th, 2013 @ 2:17pm

    Re: Stand your ground laws now needed!

    Too soon... just too soon.

     

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  11.  
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    Anonymous Coward, Jul 19th, 2013 @ 2:38pm

    Re: Re:

    Being able to order someone killed feeds a powers seekers ego. Ignoring or condoning foreign governments taking action on American feeds their fear of being removed from power.

     

    reply to this | link to this | view in thread ]

  12.  
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    McCrea (profile), Jul 19th, 2013 @ 3:50pm

    Re: Test killer drone on Snowden in 3..2.1

    First? The article mentions one case of three, and I imagine there have been others.

     

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  13.  
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    McCrea (profile), Jul 19th, 2013 @ 4:02pm

    self-apparent?

    Surely the intention of the Constitution was not to allow provisions to violate the Constitution.

     

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  14.  
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    AMusingFool (profile), Jul 19th, 2013 @ 7:16pm

    Re: Test killer drone on Snowden in 3..2.1

    First test target was Anwar al-Awlaki (sp?)

     

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  15.  
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    AMusingFool (profile), Jul 19th, 2013 @ 7:20pm

    And Congress?

    If the administration is already covering up surveillance info from Congress (with their "least untruthful" answers), not sure why we'd assume that Congress is anything like fully informed on remote executions. Which would make it awfully hard to say Congress has any hand in protecting people.

     

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  16.  
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    Chris, Jul 20th, 2013 @ 12:43am

    Al Qaeda has won!

    Terrorism has won, today's USA is a different state to the one that existed prior to 9/11.

     

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  17.  
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    Anonymous Coward, Jul 20th, 2013 @ 1:08am

    Re: Stand your ground laws now needed!

    No that isn't an adequate comparison. You'd have to be able to send assassins or personally killing drone pilots for it to be accurate. Or perhaps officials signing off on them. Killing in advance is justifiable as fear for your life as they plan on assassinating you from beyond line-of-sight.

     

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  18.  
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    Anonymous Coward, Jul 20th, 2013 @ 1:15am

    If others use drones against the US

    It is only a matter of time before others start making their own drones. They're cheaper than aircraft and more expendable. Logic dictates that with the US setting the rules of engagement with drones what goes around will come around - especially if the source of the drone ends up deniable. Aside from the obvious chaos that scenario would cause a question remains - would this still be enough to put an end to their breathtaking hypocrisy?

     

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  19.  
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    Cloudsplitter, Jul 20th, 2013 @ 9:20pm

    Re:

    Already happened in Washington DC on Mass Ave a part of Embassy Row, Argentine Ambassador Letelier in exile after the coup, and his american assistant Ronny Moffit, both working in the Human Rights area, were blown up in a car bomb as they drove around one of the circles that grace this avenue. An investigation lead back to the junta.

     

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  20.  
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    Cloudsplitter, Jul 20th, 2013 @ 9:48pm

    Re: If others use drones against the US

    Anyone can build a Drown, 99% of the components are off the shelf, and gettable from around the world, cost is low, war heads do not have to be big, depending on the target, a half to one pound of C4, or other type mil grade explosive, or commercial, or home made equivalent, fusing is just as easy, consider it a Kamikaze. Off the shelf small commercial drown buys now can carry five pounds plus, I have seen vids of small drowns carrying as much as forty pounds. While small, range is limited onlt by fuel and engine efficancy, guidance by GPS, radio control or both, and laser targeting is possible. I am just supprised we have not seen more of them, our opponant clearly have the skill level to make them, and have used them in military actions.

     

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  21.  
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    M. Alan Thomas II (profile), Jul 20th, 2013 @ 10:05pm

    Has he never heard of Marbury v. Madison? Even the argument that something can be protected by the legislative branch rather presupposes legislation, and legislation is inherently reviewable for constitutionality by the courts. Q.E.D.

     

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  22.  
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    Bergman (profile), Jul 21st, 2013 @ 4:30am

    Re: Test killer drone on Snowden in 3..2.1

    The thing is, the laws that prohibit such an action (both constitutional and statutory) don't specify a territorial limit. The prohibition is attached to the government officials, not the target or the ground that target is standing on.

    The DOJ has a page that explains Title 18, Chapter 13, Section 242 of the US Code. Nowhere does it say that the statute only applies on US soil, it simply makes it a criminal act for a government official to do such a thing ANYWHERE.

    http://www.justice.gov/crt/about/crm/242fin.php

     

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  23.  
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    Bergman (profile), Jul 21st, 2013 @ 4:35am

    Re: Wrong on so many levels

    If it's not murder to fire a missile at someone from an unmanned aircraft, nor is it an act of war to do so above someone else's sovereign territory, then our government has, essentially, legalized the assassination of anyone, anywhere at any time. Including our own high government officials.

     

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  24.  
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    Bergman (profile), Jul 21st, 2013 @ 4:36am

    Re: Well, technically...

    Which would give their family standing for a 42USC1983 lawsuit.

     

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  25.  
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    Bergman (profile), Jul 21st, 2013 @ 4:39am

    Re: Re: If others use drones against the US

    Unless you're talking about a remotely piloted submarine, I suspect the word you want is drone, not drown.

     

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  26.  
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    Lurker Keith, Jul 23rd, 2013 @ 5:16am

    Right to petition the Government

    Doesn't the First Amendment guarantee us the right to petition the Government? & isn't the court part of the Government (common phrasing is "petition the court")?

    So, we have a First Amendment right to question things like this.

    Also, killing an American remotely like they want is clearly a violation of the Constitution (guarantee to Life) & a number of Amendments, especially Due Process, which is in the 5th & 14th Amendments.

    Glad the Judge appears to see through the DoJ's overreach attempt.

     

    reply to this | link to this | view in thread ]


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