DOJ: Some Constitutional Rights Can't Be Tested In Courts, Like Our Ability To Kill You With A Drone

from the say-what-now? dept

Another day, another crazy claim from the DOJ. The latest concerns a legal challenge to the administration's ability to use drone strikes against US citizens abroad. The US has been arguing that this issue cannot be tried in court because it's outside the court's jurisdiction and because of national security reasons. Most ridiculously of all, the DOJ has argued that there are Constitutional rights that cannot be challenged in court:

Deputy Assistant Attorney General Brian Hauck argued there was a difference between having a constitutional right—which he said could be protected by the executive and legislative branches—and being able to make constitutional claims in court.

Think about that statement for a second. It's not just legally wrong, it's horrifying. Thankfully, Judge Rosemary Collyer found this claim equally bizarre.

"I'm really troubled…that you cannot explain to me where the end of it is," Collyer said. "That, yes, they have constitutional rights but there is no remedy for those constitutional rights."

In case you're wondering, Hauck apparently is relying on the Political Question Doctrine, which tends to be applied very narrowly and is only supposed to mean that courts should not take on cases that present a "political" question rather than a "legal" question. But, a Constitutional issue over whether or not the US government has the right to kill a US citizen like that certainly seems like a legal question, not a political one.

Hauck further argued the executive and legislative branches could be trusted to protect the rights of citizens. In other words: "Hey, courts, don't worry about US drone strikes killing US citizens, Congress and the administration have this one covered." But, um, that's not how it works. We have three branches of government for a reason, and the checks and balances they provide is the key reason. Having an administration that is in charge of using the drone strikes, along with a very compliant Congress, as the only ones capable of determining if the use is appropriate seems to completely ignore the basic premise of the checks and balances of government, especially when it comes to the Constitutional rights of US citizens.

"The problem is, how far does your argument take you?" Collyer said, adding that she found it "a little disconcerting" that the government was arguing that there could be no court review of a decision by the executive and Congress to target American citizens abroad.

It's good to see the judge is concerned, but this case has a long, long way to go, and the administration is going to try as hard as possible to keep this issue out of court entirely.

Filed Under: administration, brian hauck, constitution, courts, doj, drone strikes, drones, political questions doctrine, rosemary collyer