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Litigating the New Frontier in the War on Terror

[Model drone in front of the White House. Image from Brendan Smialowski / AFP] [Model drone in front of the White House. Image from Brendan Smialowski / AFP]

In the landscape of the global “war on terror,” the Center for Constitutional Rights and the American Civil Liberties Union are veteran pioneers. CCR hacked into the “legal black hole” of Guantánamo by pursuing the first challenge, back in February 2002, to the denial of habeas corpus for people detained there incommunicado; they prevailed at the Supreme Court in 2004. The ACLU tunneled into the glacier of governmental secrecy with one Freedom of Information Act (FOIA) lawsuit after another, bringing to light and making publicly accessible a good deal of what we now know about US policies and practices in the context of that ongoing war.

Now CCR and the ACLU are pioneering into the new frontier, the US targeted killing policy, which has escalated dramatically since Barack Obama took office in 2009. In July, the two organizations filed a lawsuit against Defense Secretary Leon Panetta, CIA Director David Petraeus, and two commanders of the Joint Special Operations Command (JSOC). Although thousands have been killed by drones and targeted raids, the grease that opens the courtroom door in this case is the American citizenship status of three of the dead: Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki. 

This lawsuit is pioneering because it is the first challenge in a US court to the legality of the consequences of the targeted killing policy. It is not the first case, however. After the Washington Post reported in January 2010 that Anwar al-Awlaki had been put on the Obama administration’s “kill list,” his father Nasser, with the ACLU and CCR, brought a lawsuit challenging the legality of executive authorization for extrajudicial execution of a citizen. That case was dismissed when the court ruled that the senior al-Awlaki lacked standing because the government had no plans to kill him. 

Now that Anwar al-Awlaki, his 16-year-old son Abdulrahman and Khan are dead, there is a different kind of case to be made. The plaintiffs are Nasser al-Awlaki and Sarah Khan, mother of Samir. The complaint charges the defendants with violating the Fourth and Fifth Amendments of the Constitution by authorizing attacks that killed three citizens. Everyone in the US, regardless of citizenship status, is covered by the Constitution. But beyond the shores, only citizens have constitutional rights not to be deprived of life without due process of law. Or at least that is a right the lawsuit aims to demonstrate by pursuing consequences for those responsible for its violation. 

Of the three dead citizens, only Anwar al-Awlaki was targeted on purpose. Khan had the misfortune of being with him on 30 September 2011 when the jointly operated CIA-JSOC drone struck. Why Abdulrahman was killed in an attack two weeks later remains shrouded in secrecy, like the policy in general. 

Anwar al-Awlaki was accused by the government of being a leader of al-Qaeda in the Arabian Peninsula and waging war on the US. The authorization to kill him had been varnished with a legal opinion written in 2010 by lawyers in the Justice Department’s Office of Legal Counsel, the same office that, under the previous administration, had provided legal cover for the use of torture. Although the Obama administration has resolutely refused to declassify that opinion, thus depriving the public of a fuller understanding of the legal rationales for the targeted killing of citizens, its contents were leaked to the New York Times in October of last year. (In a separate case, the ACLU along with the New York Times is suing the government under FOIA to release that document and other information about the targeting of citizens.)

The ACLU and CCR are making a case with broad implications for executive discretion and the legality and limits of the use of lethal force. Citing the killing of Anwar al-Awlaki specifically, the complaint challenges the drone war in Yemen more broadly on the grounds that the US “was not engaged in an armed conflict with or within” that country. That charge has shadowed the targeted killing policy since the first operation—also in Yemen—in 2002, and would have implications for drone warfare in Pakistan, East Africa and other areas where the US is not officially “at war.” But the killing of a citizen on purpose outside a war zone provided the opening to challenge it. The Obama administration, like the Bush administration, relies on the Authorization To Use Military Force, passed by Congress days after the 9/11 terrorist attacks, to assert the prerogative to attack perceived threats wherever they may be. This case would put the powers granted to the president under the AUMF into judicial play in a new way. 

The complaint also challenges the government’s interpretation of “direct participation in hostilities.” The blurry and contested meaning of direct participation has gotten a lot of judicial play via habeas challenges to the detention of people in Guantánamo and in the context of charges prosecuted through the military commissions. But this case, in which the allegation of direct participation is coupled with the use of lethal force, elevates the issue to a new level. 

The killing of Khan and Abdulrahman, who were not alleged to be participating in hostilities, would bring the issue of “collateral damage” into the courtroom. If the case is goes forward, the government will be forced to answer questions about decision making and operational compliance with international humanitarian law rules on proportionality and distinction. Did the government kill them—and, by implication, other untargeted civilians—by “mistake”? And if so, is the whole clandestine kill process mistake-prone

So far, the government has not had to answer such questions, at least not in a court of law. To the extent that any answers have been provided about targeted killing in general and the killing of citizens in particular, they have come mostly in the form of leaks from unnamed sources and carefully scripted public remarks by top officials

The targeted killing policy is the latest incarnation of unfettered executive superpower discretion. The policy has been criticized for violating international law, including from European allies and the UN Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions. Popular opinion in the US, however, runs strongly in favor of this policy; target killing is one of the very few things the Obama administration does that enjoys strong bipartisan support. For this reason, litigation is so important because it is the only available means of challenging the policy, and the killing of three citizens provided the opportunity to do so. 

If this case is not dismissed on state secrets grounds, as the government is likely to argue in its response to the complaint which is due in the fall, it will expose a new horizon for litigating the conduct of war. Even if the case is dismissed, CCR and the ACLU deserve commendation for once again pioneering into the murky landscape of the “war on terror” to press for governmental transparency, accountability and adherence to the law.

 

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