Monday, May 17, 2010

Extrajudicial Killing of American Citizens: What Are the Limits?

The Obama administration's desire to suspend Miranda warnings for terrorism suspects seems pretty minor today, as the administration has now announced that it is willing to order extrajudicial killings of American citizens. (This is somewhat old news, but it's difficult to keep up with all of these presidential innovations.) Anwar Al-Awlaki is an American citizen living in Yemen (and American-born as well, which matters politically, though it shouldn't).

The argument for this decision basically comes down to: “American citizenship doesn’t give you carte blanche to wage war against your own country. If you cast your lot with its enemies, you may well share their fate.”

The problem, again, is that apparently the executive also gets to decide what counts as "waging war" and what does not, without much input from the other two branches (which, in days of yore, were also considered to have a role in the wartime decision-making apparatus). There is no judicial oversight whatsoever here, nor any set procedure to be sure that the citizen is actually waging war against the U.S. From the NYT article: “Congress has protected Awlaki’s cellphone calls,” said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. “But it has not provided any protections for his life. That makes no sense.” And who can say if administrative oversight in the CIA, not an organization known for public transparency or accountability, is adequate?

Awlaki's seems like an easy case as far as guilt goes (though those of many suspects do) -- he has clearly "cast his lot with America's enemies." Future cases might not be so easy, and judicial oversight or mandated congressional procedures based on constitutional rights will be sorely missed. The erosion of civil liberties (although, really, it seems parochial to use that term to refer to such a severe "deprivation" thereof) takes place piecemeal, via cases likely to garnish a good amount of public support, like this one. But it is precisely at these times that we should certify the limits of executive power.

The administration's arguments here do not foreclose the possibility of ordering the CIA to kill an American suspected of "waging war" while he's in Dallas or Chicago. They also don't foreclose allowing the CIA to delegate responsibilities to other law enforcement agencies (and who knows how the factfinding process even worked). And after all, the War on Terror is no traditional war, and we all know that that has led to major "innovations" in the government's prosecution of it. As the government turns wartime tactics, whether surveillance or actual killing, onto American citizens, the War on Terror becomes increasingly indistinguishable from the War on Crime. But it's now far less assailed by the kinds of criticisms from the mainstream American left than it was during the Bush era.


kay sieverding said...

DOJ has recently won a district court case giving it immunity for extrajudicial incarceration -- imprisoning citizens without a criminal charge. See

I was imprisoned by DOJ for 5 months without a criminal charge, an arraignment, a bail hearing etc. This was on the order of former judge Naughty Nottingham. I was told in court that I was not entitled to a lawyer or an evidentiary hearing before going to jail because I wasn't accused of a crime. This happened three times. The last time, assistant U.S. Attorney Robert Anderson showed up and said that the government wasn't a part of this. See PACER for Fed D of Columbia Case 1:09-cv-00562-JDB Document 47-2 Filed 11/12/2009 Page 11 of 141. After that I was held by USDOJ for another three weeks and taken 1200 miles in chains before I was released. I don't have a criminal record.

DOJ claimed that there was no obligation for criminal procedure. DOJ counsel David Rybicki argued successfully that DOJ has immunity from liability for incarceration without a criminal charge because it published in the Federal Register that it uses Prisoner Tracking Systems when there is a criminal conviction. I emailed to DOJ counsel David Rybicki and asked him DOJ's position on discovery of the statutory basis of any charges against me. He was "opposed". Look up on PACER Case 1:09-cv-00562-JDB Document 47-2 Filed 11/12/2009 Page 26 of 141.

I did pay $455 and I filed an appeal in the Court of Appeals for the District of Columbia, # 10-5149. However, the chance that I will lose that appeal is over 99% because pro se litigants almost always lose. They are not allowed oral argument and they don't have a right to file using ECF. Without ECF filings it is really difficult for the judges to read what you file. According to the Federal Judicial Conference, most pro se appeals are actually decided by a clerk. The DC Court of Appeals is the most important one. So probably in a year they will rule that DOJ has no liability for extrajudicial incarceration, meaning no one gets in trouble because it is so inexpensive. Then DOj will probably do a lot more incarceration of American citizens without a criminal charge. Maybe I will apply to the S.C. but the S.C. very rarely picks pro se cert petitions. So then extra judicial incarceration will be accepted in the U.S. Then if you die in prison, who will know or care other than your immediate family?

I did argue the NonDetention Act 18 USC Section 4001. What I was accused of was representing myself in court, which I argued is a fundamental right as well as a statutory right see 28 USC section 1654 (signed by President George Washington). But I already argued that in the 8th and 10th Circuit without success.

Federal public defender Raymond Moore wrote to me in jail that the public defenders couldn't represent me because I wasn't accused of a crime. I put a copy of his letter in PACER see D of Colorado 02-cv-1950 document 644. He said it was because I was only accused of civil contempt. When I was incarcerated, the prosecutors were insurance company lawyers. They accused me of engaging in civil litigation without judge Naughty's permission.

I was not accused of perjury or fraud. I was accused of telling a federal judge that Kevin Bennett, Steamboat Springs city council president, might be a drug dealer. Then Bennett admitted that he was convicted of conspiracy to sell hash so I was right about that.

I'm sorry I wasn't more effective in arguing that DOJ can't imprison U.S. citizens without a criminal charge but I really tried hard.

kay sieverding said...

P.S. There are lots of USDOJ employees who have ratified DOJ imprisonment without a criminal charge. The general DOJ emails use DOJ employees ratifying DOJ imprisonment without a criminal charge include:
David Rybicki
Rudolph Contrareras
Channing Phillips
John McNulty
William Bordley
Stephen Wallisch
Roberto Rodriquez
Paul Server
Edward Zahren
Paul Otto
Robert Anderson
Stephen Sinnot
David Gaouette

There are others too. I will send this blog to the emails above so the named parties can correct any misunderstandings about DOJ extrajudicial incarcerations.

kay sieverding said...

The First Amendment limits restrictions on pro se speech.

"We start with the premise that the rights to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights. These rights, moreover, are intimately connected, both in origin and in purpose, with the other First Amendment rights of free speech and free press. “All these, though not identical, are inseparable.”MINE WORKERS V. ILLINOIS BAR ASSN., 389 U. S. 217 (1967)

Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal process for purely private gain… Although petitioner has amply shown that its activities fall within the protection of the First Amendment, the State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from petitioner’s activities, which can justify the broad prohibitions which it has imposed.” NAACP v. BUTTON 371 U.S. 415 (1963) U.S. Supreme Ct.

The Supreme Court wrote on 4/20/10 that:
Since its enactment, the First Amendment has permitted restrictions on a few historic categories of speech—including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—that “have never been thought to raise any Constitutional problem,” Chaplinsky v. New Hampshire, 315 U. S. 568, 572. .... The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. New York v. Ferber, 458 U. S. 747, distinguished. Pp. 5–9. US. v. Stevens No. 08-769 (U.S. 04/20/2010)

“Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest…. The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech…. First Amendment protections do not depend on the speaker's "financial ability to engage in public discussion." Citizens United v. Federal Election Commission, No. 08-205 (U.S. 01/21/2010)

Content-based restrictions on speech are "presumptively invalid" and subject to strict scrutiny.” Davenport v. Washington Ed. Assn., 551 U. S. 177, ___. Ysursa v. Pocatello Education Association, 129 S.Ct. 1093 (U.S. 02/24/2009).

… Among the particular privileges and immunities which are clearly to be deemed fundamental, the court in that case specifies the right 'to institute and maintain actions of any kind in the courts of the state.' CHAMBERS V. BALTIMORE & O. R. CO., 207 U.S. 142 (1907)

“leaves it undisputed that the right to maintain actions in the courts is one of the fundamental privileges guaranteed and protected by the Constitution” CANADIAN NORTHERN RAILWAY COMPANY v. EGGEN, 40 S. Ct. 402, 252 U.S. 553 (U.S. 04/19/1920)

“Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid, R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992), and that the Government bear the burden of showing their constitutionality. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000).”Ashcroft v. American Civil Liberties Union, 124 S.Ct. 2783, 542 U.S. 656, 159 L.Ed.2d 690 (U.S.)