Al-Aulaqi v. Panetta: Lawsuit Challenging Targeted Killings
ACLU/ October 24, 2012
The American Civil Liberties Union and the Center for Constitutional Rights(CCR) have filed a lawsuit challenging the government’s targeted killing of three U.S. citizens in drone strikes far from any armed conflict zone.
In Al-Aulaqi v. Panetta (Al-Awlaki v. Panetta) the groups charge that the U.S. government’s killings of U.S. citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman Al-Aulaqi in Yemen last year violated the Constitution’s fundamental guarantee against the deprivation of life without due process of law.
The killings were part of a broader program of “targeted killing” by the United States outside the context of armed conflict and based on vague legal standards, a closed executive process, and evidence never presented to the courts.
Since 2002, and routinely since 2009, the U.S. government has carried out deliberate and premeditated killings of suspected terrorists overseas. In some cases, including that of Anwar Al-Aulaqi, the targets were placed on “kill lists” maintained by the CIA and the Pentagon. According to news accounts, the targeted killing program has expanded to include “signature strikes” in which the government does not know the identity of individuals, but targets them based on “patterns” of behavior that have never been made public. The New York Times recently reported that the government counts all military-age males in a strike zone as combatants unless there is explicit intelligence posthumously proving them innocent.
Outside of armed conflict, both the Constitution and international law prohibit killing without due process, except as a last resort to avert a concrete, specific, and imminent threat of death or serious physical injury. Even in the context of an armed conflict against an armed group (which did not exist in Yemen at the time of these killings), the government may use lethal force only against individuals who are directly participating in hostilities against the United States. Regardless of the context, whenever the government uses lethal force, it must take all possible steps to avoid harming civilian bystanders. The lawsuit argues that the senior CIA and military leaders who authorized and directed the killings violated these standards.
Anwar Al-Aulaqi and Samir Khan were killed in a U.S. drone strike in Yemen on September 30, 2011. Abdulrahman Al-Aulaqi, a 16-year-old boy born in Denver, was killed in a U.S. drone strike in Yemen on October 14, 2011, while he was eating dinner at an outdoor restaurant with his teenage cousin.
According to the legal complaint, the killings violated the right to due process under the Fifth Amendment to the Constitution, the prohibition on unreasonable seizures under the Fourth Amendment, and, with respect to Anwar Al-Aulaqi, the ban on extrajudicial death warrants imposed by the Constitution’s Bill of Attainder Clause. The killings also violated international law, which is incorporated through the Constitution.
This case follows a lawsuit filed by the ACLU and CCR in 2010 challenging Anwar Al-Aulaqi’s placement on government kill lists, before his death. A federal district court dismissed the case, holding that the plaintiff, Al-Aulaqi’s father, lacked standing to bring suit, and that the request for before-the-fact judicial review raised “political questions” that the court could not decide.
The U.S. Constitution was treated like a piece of paper under the administrations of George W. Bush and Barack Obama respectively. Should it still matter? Yes. Does it still matter? Not really.