ACLU Court Filing Argues for Judicial Review of U.S. Targeted Killings of Americans [View all]

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ACLU Court Filing Argues for Judicial Review of U.S. Targeted Killings of Americans

By Noa Yachot

The courts have a crucial role to play in determining the lawfulness of U.S. drone killings of three American citizens in Yemen in 2011, the ACLU and the Center for Constitutional Rights argued in a brief filed last night in a lawsuit challenging the killings (you can read the brief here).

Our lawsuit charges that U.S. citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman Al-Aulaqi were killed in violation of the Constitution's fundamental guarantee against the deprivation of life without due process of law. In December, the government filed a motion to dismiss the case, arguing, in essence, that the courts should not be involved in determining the lawfulness of the targeted killing of U.S. citizens. As we say in the brief filed yesterday:

This case concerns the most fundamental right the Constitution guarantees to citizens: the right not to be deprived of life without due process of law. Defendants respond with various arguments for dismissal of the case, but they all boil down to a single assertion: The Executive has the unilateral authority to carry out the targeted killing of Americans it deems terrorism suspects—even if those suspects do not present any truly imminent threat, even if they are located far away from any recognized battlefield, and even if they have never been convicted (or even charged) with a crime.

The filing of the brief came just one day after the release by NBC News of a Justice Department white paper, which summarizes a secret Department of Justice legal memo purportedly justifying the addition of Anwar Al-Aulaqi to the government's secret kill lists. (We're separately seeking that legal memo in a Freedom of Information Act lawsuit).

The unchecked authority the government claims is dangerous, and the potential for abuse is clear. Under our Constitution and its system of checks and balances, the executive branch cannot decide alone that it can strip a citizen of the right to life. As the Supreme Court ruled in Hamdi v. Rumsfeld, &quot w)hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

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http://www.aclu.org/blog/national-security/aclu-court-filing-argues-judicial-review-us-targeted-killings-americans

This is a determination made by the ACLU based on incomplete information. Also, think about this statement:

"Under our Constitution and its system of checks and balances, the executive branch cannot decide alone that it can strip a citizen of the right to life."

That's true, but the Constitution also affords the President exceptions. Contrast that statement with this comment by Senator Wyden:

“As I and ten other senators told the President yesterday, if individual Americans choose to take up arms against the United States, there will clearly be some circumstances in which the President has the authority to use lethal force against those Americans, just as President Lincoln had the authority to use force against the Confederate Army during the Civil War. At the same time, it is vitally important for Congress and the American public to have a full understanding of how the executive branch interprets this authority, so that Congress and the public can decide whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards. Every American has the right to know when their government believes that it is allowed to kill them.

The drone white paper sparked a debate.
http://www.democraticunderground.com/10022321400

From the Center for Constitutional Rights (arguing against targeted killings) :

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Under the Constitution and international law, individuals must be afforded due process and convicted for a capital crime before they may be executed by the state. In extremely narrow circumstances, judicial process is not required if an individual poses an imminent threat of death or serious physical harm to others, and lethal force is a last resort to address the threat. A targeted killing policy in which names are added to kill lists after a bureaucratic process and remain on the lists for months is clearly not limited to addressing imminent threats or using lethal force as a last resort, and goes far beyond what the law permits. By substituting its own bureaucratic process for the due process required by the Constitution and international law, the executive is assuming the role of judge, jury, and executioner.

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The executive process for authorizing these killings also plainly violates the legal requirements for the use of lethal force by the state. Outside of armed conflict, where the Constitution and peace-time international law apply, the United States can only take an individual’s life, no less the life of a U.S. citizen, after trial and conviction. The only exception to the rule is where the individual poses a grave threat of such imminence that judicial process is infeasible and lethal force is the only option that could reasonably address the threat. That individuals are added to kill lists after a bureaucratic process and left on the lists for months at a time flies in the face of the requirement that killing must be a last resort to address an imminent threat that leaves no time for process or deliberation.

http://ccrjustice.org/learn-more/faqs/kill-lists

The Constitution does grant the President the authority to use lethal force against citizens who take up arms against the United States in armed conflict and in situations where the individual "poses a grave threat of such imminence that judicial process is infeasible and lethal force is the only option."

The ACLU's argument requires that the government has no justification for labeling Anwar Al-Aulaqi a terrorist and no evidence of an imminent threat and the infeasibility of the judicial process exists.

It's impossible to know this because the information required to make this determination hasn't been made available.

In 2002, another U.S. citizen was killed in Yemen, though it was originally stated that he was not the target.

Kamal Derwish (also Ahmed Hijazi) was an American citizen killed by the CIA as part of a covert targeted killing mission in Yemen on November 5, 2002. The CIA used an RQ-1 Predator drone to shoot a Hellfire missile, destroying the vehicle in which he was driving with five others.[1]

Derwish had been closely linked to the growing religious fundamentalism of the Lackawanna Six, a group of Muslim-Americans who had attended lectures in his apartment near Buffalo, New York.[2][3]

That an American citizen had been killed by the CIA without trial drew criticism.[4] American authorities quickly back-pedaled on their stories celebrating the death of Derwish, instead noting they had been unaware he was in the car which they said had been targeted for its other occupants, including Abu Ali al-Harithi, believed to have played some role in the USS Cole bombing.[4]

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On November 3, 2002, Derwish and al-Harithi were part of a convoy of vehicles moving through the Yemeni desert trying to meet someone, unaware that their contact was cooperating with US forces to lure them into a trap. As their driver spoke on satellite phone, trying to figure out why the two parties couldn't see each other if they were both at the rendezvous point, a Predator drone launched a Hellfire missile, killing everybody in the vehicle. CIA officers in Djibouti had received clearance for the attack from director George Tenet.[4]
http://en.wikipedia.org/wiki/Kamal_Derwish

Human Rights Watch issued this statement:

The line between war and law enforcement gained importance as the U.S. government extended its military efforts against terrorism outside of Afghanistan and Pakistan. In November, the U.S. Central Intelligence Agency used a missile to kill Qaid Salim Sinan al-Harethi, an alleged senior al-Qaeda official, and five companions as they were driving in a remote and lawless area of Yemen controlled by tribal chiefs. Washington accused al-Harethi of masterminding the October 2000 bombing of the U.S.S. Cole which had killed seventeen sailors. Based on the limited information available, Human Rights Watch did not criticize the attack on al-Harethi as an extra-judicial execution because his alleged al-Qaeda role arguably made him a combatant, the government apparently lacked control over the area in question, and there evidently was no reasonable law enforcement alternative. Indeed, eighteen Yemeni soldiers had reportedly been killed in a prior attempt to arrest al-Harethi. However, the U.S. government made no public effort to justify this use of its war powers or to articulate the legal limits to such powers. It is Human Rights Watch's position that even someone who might be classified as an enemy combatant should not be subject to military attack when reasonable law enforcement means are available. The failure to respect this principle would risk creating a huge loophole in due process protections worldwide. It would leave everyone open to being summarily killed anyplace in the world upon the unilateral determination by the United States (or, as the approach is inevitably emulated, by any other government) that he or she is an enemy combatant.

http://www.hrw.org/legacy/wr2k3/introduction.html

It reiterates the conditions for action ("al-Qaeda role," "no control over area" and "no reasonable law enforcement alternative," but it also stresses the risk of a slippery slope.