"Off With His Head": Court Upholds Obama's Power to Kill

  April 9, 2014

"Off With His Head": Court Upholds Obama's Power to Kill

Michael Ratner: There have been no criminal prosecutions for illegal actions committed by the U.S. in the name of national security since 9/11
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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.


ANTON WORONCZUK, TRNN PRODUCER: Welcome to The Real News Network. I'm Anton Woronczuk in Baltimore. And welcome to another edition of The Ratner Report.

Joining us now is Michael Ratner. Michael is the president emeritus of the Center for Constitutional Rights in New York, the attorney for Julian Assange, and president of the European Center for Constitutional and Human Rights. He's also a board member for The Real News.

Thanks for joining us, Michael.


WORONCZUK: So what do you have for us this week?

RATNER: Well, you know, I think about drone killings a lot. And I think I have a new name for Obama. You know, you remember all those Shakespeare plays you read, and then you remember Alice of Wonderland and the Queen of Hearts always saying, "Off with your head" or Queen Margaret in, I think, Henry VIII, off with your head. The name for Obama should be, Off With Your Head, and then Person Gets Droned to Death. That's apparently what it takes now or all it takes now is to get an American citizen killed when he is overseas or she is overseas

And the case that brings that to mind is one that my office, the Center for Constitutional Rights, brought together with the ACLU. And it was dismissed by the judge on April 4. And it was a case brought on behalf of three American citizens who were killed in drone attacks in Yemen in 2011. It was a damage case brought by the father of one (same man) and the grandfather of one, his son and his grandson were both killed. And it was brought against the heads of the CIA, JSOC, Joint Special Operations Command, and various other officials in the United States government.

The three people killed, three Americans, were the well-known Muslim cleric Anwar al-Awlaki, who was living in Yemen. Samir Khan, who was a editor of a online magazine called Inspire, also living in Yemen, he was, quote, collateral damage when they droned Anwar al-Awlaki to death. Samir Khan was in the car or in the place with him. And then, a few weeks later, somehow Abdulrahman, the 16-year-old son of Anwar al-Awlaki, was also killed in a drone attack, although the government also claims in his case that it was, quote, collateral damage, although we don't know what they were really trying to do. He's this beautiful 16-year-old boy who was out looking for his father.

As I said, the case was brought on their behalf by the family of Samir Khan, as well as by the grandfather of Abdulrahman, as well as the father of Anwar al-Awlaki.

There's some history to that case. The Center for Constitutional Rights and the ACLU had actually gone to court earlier to try and stop the killing of Anwar al-Awlaki. Obama had let it be leaked that Anwar al-Awlaki was on the kill list. We represented the father, Nasser al-Awlaki in court, in an American court, and said the president has no right to kill an American citizen--or anybody else, for that matter--without going to court who is overseas and outside of a war zone.

Unfortunately--and really unfortunately--the court used a technical argument to get rid of the case. It said that the father could not represent the son, that he didn't have enough interest in the outcome and therefore couldn't represent the son--a complete BS ruling. You know, I have represented fathers on behalf of their children all the time. I did that in Guantanamo cases. I represent the parents of people at Guantanamo because we couldn't get access. But in any case, that case was dismissed.

A few weeks after that first case was dismissed, Anwar al-Awlaki was killed by a drone attack, along with Samir Khan, who he was with. And as I said, a few weeks later Anwar's son Abdulrahman was killed.

So we go and we bring the second case, which is this damage case, after the deaths. Our contention was pretty straightforward and simple. You can't assassinate, you can't kill an American--really, anybody, but in this case we had U.S. Constitution strongly on our side because it applied to U.S. citizens--you can't kill them outside a war zone as alleged terrorists without due process of law. And due process, which is a vague word to many out there, but it's not to lawyers, due process means a court has to decide whether there's--process is fair in which you're taking someone's life or their property or anything else. So when we said a court has to decide before a person is killed and the fact that a court didn't decide before these drone attacks were used against Americans means that this family ought to get a declaration that these people were killed unlawfully, and they ought to get damages.

Otherwise, look at the situation you have. The president, on his own word, can simply say, I want that person killed in Yemen, I want this person killed in the United Kingdom, I want that person killed in Ohio. They do it by drones, they do it by Joint Special Operations Command, on the president's word alone, seemingly, in my view, something that should be completely unheard of. There was obviously no due process here. The president simply put Anwar al-Awlaki on the kill lists. The others, who knows? They were collateral murder, collateral damage. But they also, of course, should have had due process and the right to be protected. So think about that. The president alone decides who to kill anywhere in the world and what this country has become.

In a chilling ruling this federal judge in this federal district court dismissed the case. And the key language from that opinion is: the government must be trusted. I want to repeat that: the judge said the government must be trusted. And here's the exact quote: "Defendants must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the president and with the concurrence of Congress. It's a really outrageous ruling. The president kills whom he pleases, just so Congress is given broad authority for the president to determine who the enemy is.

It's an utter abdication by the court. It gives up on the so-called checks and balances we all learned as schoolchildren. It ends, actually, a key principle of the Magna Carta, which is the American and British charter of liberties, which was actually ratified or signed by King John in the year 1215. We're coming up to the 800th anniversary. So what this court ruling does, what the president's action does do is overturn 800 years of constitutional history.

Courts are supposed to be a buffer between what was the absolute power of kings and the people. We no longer have the rule of law; we have the rule of the king. In other words, we have the syndrome of "off with his head".

It also brings into focus, as I conclude this section, the larger picture of the role of courts post-9/11. One could easily say they're worthless. They haven't stopped any of the, quote, excesses post-9/11. But in fact they're worse than that. The courts have given us the illusion that all of these extreme post-9/11 measures have been tested in the courts and that these measures have been found to be legal, or at least not illegal, and therefore they're carried out legally.

And if I look at four of the primary ones, four of the primary excesses of 9/11, we can see how that happens, and then two others as well. Torture, despite Guantanamo, despite Abu Ghraib, despite Bagram, we have not had one successful case for damages with regard to torture of our clients, not at Guantanamo, not Maher Arar, who was taken out of the United States and tortured in Syria, nobody, nobody we have been able to successfully sue [incompr.] or to get damages. One.

Think about indefinite detention, secondly. As we speak, there's 155 people at Guantanamo being indefinitely detained for 12 years, many of them even cleared for release. The courts, while they said we can go to court about it, that's totally an illusion. No, the court has yet--has yet to have ordered the release, in the upper courts, of those people at Guantanamo.

So torture, indefinite detention.

Third, rendition: never a successful test of the U.S. rendering people to other countries for torture. Again, the Maher Arar case is the most clear one: Canadian citizen taken off a plane at JFK, sent to Syria for torture. Court says, can't get relief.

Fourth, the one we've just talked about today: killing by drones. Again here we had the court saying, trust us, trust us.

I could go on. The war in Libya. Couldn't get a court test. The war in Iraq. No court test. Surveillance by the NSA--courts wouldn't touch it.

So our courts have basically become a handmaiden not only to these extreme measures, but to really a rogue state and a terrorist state, which is what the U.S. has unfortunately become.

WORONCZUK: Michael, thank you so much for that report.

RATNER: Thank you for having me again on The Real News.

WORONCZUK: And thank you for joining us on The Real News Network.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.


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