Monday, February 18, 2019
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US Federal Judges Owe America an Apology

Abdulrahm AwlakiChilean judges have issued a formal apology for their deference to Chile’s national-security state apparatus under the military dictatorship of Gen. Augusto Pinochet. The apology comes some 40 years after Chile’s federal judiciary failed to protect the fundamental rights and liberties of the citizenry during Pinochet’s reign of terror. “The time has come to ask for the forgiveness of victims … and of Chilean society,” said the judges.

U.S. judges owe the American people the same type of apology for consistently deferring to the U.S. national-security state apparatus, thereby failing to do what the Constitution charges the judiciary with doing—protecting the fundamental rights and liberties of the American people from infringement at the hands of the national-security branch of the federal government.

The most recent example involves U.S. District Judge Rosemary Collyer, who bent over backwards to sustain a motion to dismiss a case brought by relatives of U.S. citizens Anwar al-Awlaki, his 16-year-old son Abdulrahm, and Samir Kahn, all of whom were assassinated in Yemen by U.S. officials.

Collyer’s extreme deference to the authority of the U.S. national-security state apparatus was reflected, first of all, in the procedural aspect of the case.

Federal rules require that in determining whether to grant the government’s motion to dismiss, the judge is required to accept all the allegations in the plaintiff’s petition as true.

How did Collyer get around that? In an incredible display of bending over backward in order to rule in favor of the government, she went outside the record of the case, turning to such things as a statement made by a convicted felon at his sentencing hearing in another federal case, a letter by the U.S. attorney general, and a speech by President Obama.

How did she use those out-of-the record statements, all of which were presumably unsworn statements and all of which were not subject to cross-examination? She used them to support the government’s thesis that Anwar al-Awlaki was a terrorist, was still actively engaged in terrorism, and was a dangerous threat to “national security.”

So, based on those things, she just concluded that the case should be dismissed.

But wait a minute. Why automatically accept whatever the government says about a person who it has assassinated? Why not give his survivors the opportunity to challenge the truthfulness of the assertions? What if all those unsworn statements were untrue?

The answer is: Because this is the national-security state apparatus we are talking about. It is the most powerful branch of government. The federal judiciary bends over backwards to give it whatever it wants, just as federal judges did in Chile under Pinochet.

In fact, the Chilean coup is instructive. During that coup, which the U.S. government helped engineer, the U.S. military and the CIA, both of which are core elements of the national-security state, helped murder two innocent American men, Charles Horman and Frank Teruggi. When Horman’s widow brought suit against the U.S. government, the U.S. federal judiciary summarily dismissed her case, just as they have now dismissed the suit brought by al-Awlaki’s survivors.

The judges explained that Horman’s widow just hadn’t presented sufficient proof to enable the suit to proceed. When Horman’s wife indicated that she wanted to take the depositions of the pertinent military and CIA officials in order to get the proof that they had killed her husband, the federal judiciary’s answer was protective of the national-security state apparatus: Oh no, we can’t permit you to delve into the secrets of the national-security state because that might be a threat to national security.

It was the same thing that Chilean judges were doing as Pinochet was killing innocent Chileans.

Collyer automatically concludes that the killing of al-Awlaki was a “wartime” action.  She obviously reaches that result because U.S. military or paramilitary were involved in the assassination and also because Congress authorized the use of force against al Qaeda.

Never mind that Collyer never required the government to prove that al-Awlaki was actually a member of al Qaeda or that he was actively engaged in hostile action against the United States. Automatically accepting whatever the government says and not making it subject to cross examination is what deference to authority is all about.

As Collyer herself put it in her opinion:

The persons hold the jobs of the named 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.

Back during the Pinochet era, the Chilean federal judiciary would have wholeheartedly agreed with Collyer if the survivors of Chilean citizen Orlando Letelier, who was assassinated in the United States by Pinochet’s national-security state goons, had brought suit in Chile against the Chilean assassins.

What’s also important is Collyer’s assumption that somehow these assassinations involve the president’s “wartime” powers under the Constitution.

Except for one important factor that Collyer, not surprisingly, never discusses: Terrorism is a federal criminal offense, not an act of war. All she had to do was go look up the U.S. Code to see that that is true. Or read the newspaper about the recent federal court trial in New York City of an aide to Osama bin Laden, the leader of al Qaeda. If terrorism is an act of war, then why does the federal government continue prosecuting suspected terrorists in federal court?

The fact is that just because the military or the CIA is engaged in enforcing criminal laws doesn’t convert the operation into a war. If it did, then the national-security state would be free to assassinate Americans suspected of being involved in drug trafficking, since the U.S. military and CIA are actively involved with enforcing the “war on drugs” in Latin America and elsewhere.

Finally, let’s not forget the Jose Padilla case, where the federal judiciary upheld the power of the military to take Americans into custody, cart them over to military dungeons or concentration camps, and torture them for as long as desired.

Could this really be the type of country envisioned by our American ancestors when they called the federal government into existence? Perish the thought! That’s the last thing that our American ancestors intended. After all, this is the type of government that existed in the countries from which people fled to come to America.

U.S. federal judges owe the American people an apology for abrogating their constitutional responsibility and selling the American people down the river. Maybe it will come 40 years from now from a new generation of judges.

Postscript: Sheldon and I had our first leg of our tour last night at Grove City College, in conjunction with the Young Americans for Liberty. We had a great time exchanging ideas on liberty with the audience, which included both students and non-students. In our Libertarian Angle format, we discussed the welfare state, the drug war, and the national security state. Now it’s on the Penn State for our next venue.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

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