Ever since the 11 September 2001 terrorists attacks in the United States of America started a global hysteria and two unlawful wars, the minds of Australian legislators and the legislation they enact have been quietly converging towards a point where they march in tandem with repressive excesses found in American law.
So this latest example of how insane the US Federal Administration has become is disturbing in the lead it gives Australian politicians of all political persuasions:
But what's most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is "state secrets": in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are "state secrets," and thus no court may adjudicate their legality.
The legal arguments can be found at Scribd in Alaulaqi v Obama Complaint* and at FireDogLake in NASSER AL-AULAQI, on his own behalf and as next ) friend acting on behalf of ANWAR AL-AULAQI v. BARACK H. OBAMA, President of the United States; ROBERT M. GATES, Secretary of Defense; and LEON E. PANETTA, Director of the Central Intelligence Agency**:
* 4. Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury. The summary use of force is lawful in these narrow circumstances only because the imminence of the threat makes judicial process infeasible. A targeted killing policy under which individuals are added to kill lists after a bureaucratic process and remain on these lists for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.
5. The government's refusal to disclose the standard by which it determines to target U.S. citizens for death independently violates the Constitution: U.S. citizens have a right to know what conduct may subject them to execution at the hands of their own government. Due process requires, at a minimum, that citizens be put on notice of what may cause them to be put to death by the state.
6. Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death.
5. The government's refusal to disclose the standard by which it determines to target U.S. citizens for death independently violates the Constitution: U.S. citizens have a right to know what conduct may subject them to execution at the hands of their own government. Due process requires, at a minimum, that citizens be put on notice of what may cause them to be put to death by the state.
6. Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death.
** This case is a paradigmatic example of one in which no part of the case can be litigated on the merits without immediately and irreparably risking disclosure of highly sensitive and classified national security information. The purpose of this lawsuit is to adjudicate the existence and lawfulness of alleged targeting decisions and to compel the disclosure of any "secret criteria" used to make those alleged determinations. Plaintiff's complaint alleges (i) that the United States has carried out "targeted killings" outside of Iraq and Afghanistan, Compl. ¶ 13, (ii) and has specifically targeted Anwar al-Aulaqi, Compl. ¶¶ 19-21, and, in particular, (iii) that Anwar al-Aulaqi is allegedly subject to the use of lethal force "without regard to whether, at the time lethal force will be used, he presents a concrete, specific, and imminent threat to life, or whether there are reasonable means short of lethal force that could be used to address any such threat." Compl. ¶ 23. At every turn, litigation of plaintiff's claims would risk or require the disclosure of highly sensitive and properly protected information to respond to allegations regarding purported secret operations and decision criteria. Even if some aspect of the underlying facts at issue had previously been officially disclosed, the Government's privilege assertions demonstrate that properly protected state secrets would remain intertwined in every step of the case, starting with an adjudication of the threshold issue of plaintiff's standing (i.e., whether or not there is an alleged "target list" which includes plaintiff's son, and whether he is being subjected to the threat of lethal force absent an imminent threat or a reasonable alternative to force), and the inherent risk of disclosures that would harm national security should be apparent from the outset.
The now retired Hon. Justice Michael Kirby's early words of caution have largely gone unheeded by successive federal and states attorneys-general in this country and, there is no guarantee that a Gillard Government would be anymore respectful of the human rights of citizen's than the Obama Government in America.
AUSTRALIAN LAW - AFTER SEPTEMBER 11, 2001 The Hon. Justice Michael Kirby AC CMG, 11 October 2001:
It is impossible for Australian lawyers to collect in Canberra and to proceed in these next few days as if nothing has happened. It is impossible for us to see our Constitution as if it speaks only to Australia and Australians. It speaks of us to the world. It is impossible to pretend that the comfortable topics of the legal profession have the same priority as this moment. It is necessary for us to reflect upon the moment. But to do so keeping our priorities and viewing recent events in the context which our Constitution, our institutions, our law and our tradition of human rights demands that we take.....
In the course of a century, we, the lawyers of Australia, have made many errors. We have sometimes scorned those who, appearing for themselves, could not reach justice. We have gone along with unjust laws and procedures. We have been instruments of discrimination and it is still there in our books. We have not done enough for law reform. We have often been just too busy to repair every injustice. Yet in some critical moments, lawyers have upheld the best values of our pluralist democracy. In the future, we must keep it thus. To preserve liberty, we must preserve the rule of law. That is our justification and our challenge.
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