SCOTT SHANE reports on the case before Judge Rosemary M. Collyer of the United States District Court: government’s request to dismiss a lawsuit filed by relatives of three Americans killed in two drone strikes in Yemen in 2011.
Shane writes in the New York Times:
“Judge Collyer said she was “troubled” by the government’s assertion that it could kill American citizens it designated as dangerous, with no role for courts to review the decision.
“Are you saying that a U.S. citizen targeted by the United States in a foreign country has no constitutional rights?” she asked Brian Hauck, a deputy assistant attorney general. “How broadly are you asserting the right of the United States to target an American citizen? Where is the limit to this?”
Judge Collyer’s answer: “The limit is the courthouse door.”
Shane points out that both the legality and wisdom of the administration’s use of targeted killing as a counterterrorism measure are being challenged in Congress and among the public.
- Americans targeted overseas have rights which could not be enforced in court either before or after the Americans were killed.
- Judges have neither the expertise nor the tools necessary to assess the danger posed by terrorists, the feasibility of capturing them or when and how they should be killed.
- Courts don’t have the apparatus to analyze such issues, so they must be left to the executive branch, with oversight by Congress
- There are multiple “checks” inside the executive branch to make sure such killings are legally justified.
Brian Hauck: “We don’t want these counterterrorism officials distracted by the threat of litigation”
The government asked that the lawsuit be dismissed on several grounds. Mr. Hauck said decisions about targeted killing should be reserved to the “political” branches of government, the executive and legislative, not the judiciary. In addition, allowing a lawsuit against top national security officials to proceed would set a dangerous and disruptive precedent.
Judge Collyer said the case raised difficult questions, requiring further reading and studying, adding:
“The most important thing about the United States is that it’s a nation of laws”.