Okay... that headline is out on a bit of a limb here, but...
Usually this would be the space where I or one of my two fellow editors engage in further outrage at the extrajudicial murder of American citizens by their own government. And you might well be justified in asking: "And this has what to do with the right of Americans to engage in at times not-so-civil litigation?"
The ACLU and their fellow travellers have filed suit on behalf of the survivors of Anwar al-Aulaqi and others Americans toad-cranked in the last year by the Obama Administration without any due process in the name of the so-called war on terrorism.
I tweeted this excellent brief yesterday from Justia.com's blog... it's a short read; check it out, I'll wait...
All done? Very well... then as you will know from your reading, the point here is that the original attempt to prevent the government from doing this was never heard on the merits.
This is a critical point, because the Stalinist right wingers currently waging an increasingly hot culture war against our traditional pluralistic values all hold up that previous decision as some sort of greenlight for extreme government sanctions against its own citizens without any kind of oversight or review that makes a functioning democracy... well... a functioning democracy.
But the judge in that case only ruled that the plaintiff at that time lacked standing to bring suit on the grounds as a proxy stand-in for other family members in jeopardy; at no time did he address the question of the legality of state's actions.
That may be about to change.
In filing what are essentially "wrongful death" suits against the government, a judge may now get to hear those arguements brought by plaintiffs with proper standing to sue.
The Obama Administration has a couple of ways around this: Ask for demurrer or summary judgement based on 1. The Political Question Doctrine for wonks only and 2. The State Secrets Privelege only slightly less wonky.
Either one is a probably a way out... as Democrats and progressives we need to let this administration know that we are watching this one carefully.
Yeah... I know, we have taken a pretty abrupt turn into electoral politics, but hear me out... right now, most professional pollsters and political bookmakers are pulling their hair out on how close this race is tightening up. At any given hour of the day, it could be either guy's race and anyone who tries to say with any definitive authority who the winner will be is a rube or a con.
The one thing they all agree on though is this: turnout will be the definitive factor.
Right now it looks like turn out will favor the Republicans. Even if Independents and swing blue-dog Dems decide to sit this one out and not vote for anyone, that will still be a net gain for the GOP, given that GOP turnout estimates for November are better than 85 percent while Dems are hovering in the mid 70s.
Now might be a good time for us to let the Obama campaign and Democratic Party at large know that if they want another turn at the wheel, then they can't ignore the turn out of their electoral base and will think twice about trying to kill this case in the crib if they want our money or votes (and yes, I am aware of some of the legal-ethical considerations here, such as failing to provide a complete and zealous defense for your client...).
Given the time it takes a suit to wend its way through the federal court system, the election will probably be done by the time we get into any meaningful litigation. But they need to know -- now -- that we want this one.
And then, of course, even if we get a short term "win," we need to come up with political leverage to get the Administratio to maintain a litigation posture that allows the case a full and fair hearing.
Polyannic? Yeah, probably... but if this is truly a "political question," then perhaps it's time to bring politics to bear. To quote the great Toby Zeigler from the West Wing: "I don't mind the fights we lose, I mind the ones we don't even suit up for."
If we can't suit up for this, then we really have lost already...