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ACLU Argues President Does Not Have Unchecked Authority to Kill You

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October 8, 2010

A few weeks ago, the Obama administration filed a brief in response to our lawsuit challenging the president’s targeted killing program. In that brief, the Justice Department asserted, among other things, that the president’s targeted killing authority is a “political question” that should not be subject to judicial review. It also invoked the state secrets privilege, arguing that litigating the case would threaten national security. Essentially, the Obama administration asserts the courts should play no role in establishing and enforcing the rules under which the president can kill American citizens whom it unilaterally determines to pose a threat.

Today we filed a brief in response to the government’s brief. ACLU Deputy Legal Director Jameel Jaffer said in a statement today:

“If the government’s arguments were accepted, the current administration and every future administration would have unreviewable authority to carry out targeted killings of Americans deemed to be enemies of the state. While that power would be limited to contexts of armed conflict, the government has argued that the armed conflict against al Qaeda extends everywhere, indefinitely. This is an extraordinary and unprecedented claim, and one that we urge the courts to reject unequivocally. The courts have a crucial role to play in ensuring that the government’s counterterrorism policies are consistent with the Constitution.”

We’re far from the only ones who believe the government doesn’t have unchecked power to kill its own citizens. Daniel Larison, who blogs at The American Conservative, wrote earlier this week:

The problem here is obviously that the administration is claiming the authority to order the death of a citizen on the basis of evidence that the public cannot see as part of a process that allows for no legal remedy if this power is abused. If someone tries to sue, the government will shut down the lawsuit by invoking secrecy and national security. This is the very definition of unaccountable, lawless government.

Even David Rivkin, whom Glenn Greenwald called “one of the most far-right War on Terror cheerleading-lawyers in the nation,” told The New York Times:

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me.”

The New Yorker‘s Amy Davidson adds:

“[T]he use of the state-secrets privilege in this case, which doesn’t seem to depend on real secrets, is a good reminder that governments, unless we keep our eyes on them, have a bad habit of taking the easy path if one is available. And that ends up eroding everybody’s rights.”

As we point out in the brief filed today: “While the Constitution designates the President Commander in Chief of the nation’s armed forces, it does not provide him with a blank check over the lives of its citizens.”

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