Yesterday, in New York, the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) filed a lawsuit (PDF) accusing US defense secretary Leon Panetta, CIA director David Petraeus, and William McRaven and Joseph Votel, the commanders of Special Operations Command (SOCOM) and Joint Special Operations Command (JSOC), of violating the Constitution and international law when they authorized and directed drone strikes that resulted in the deaths of three US citizens in Yemen last year — Anwar al-Aulaqi (aka al-Awlaki) and Samir Khan in a strike on September 30, 2011, which I wrote about here, and al-Aulaqi’s 16-year old son, Abdulrahman al-Aulaqi, in another strike on October 14, 2011, at an open-air restaurant (a strike that killed at least seven people, including another child, Abdulrahman’s 17-year old cousin).
The lawsuit was filed on behalf of Nasser Al-Aulaqi, the father and grandfather of Anwar and Abdulrahman Al-Aulaqi, and Sarah Khan, the mother of Samir Khan, and please see below a heart-breaking video of Nasser al-Aulaqi speaking about his grandson, in which he explains, “I want Americans to know about my grandson. He was a very nice boy he was very caring boy … I never thought that one day this boy, this nice boy, will be killed by his own government for no wrong he did certainly.” Abdulrahman had no connection to terrorism, and had merely been trying to find his father, who he missed, having last seen him before he went into hiding in 2009.
As the lawsuit states:
Since 2001, and routinely since 2009, the United States has carried out deliberate and premeditated killings of suspected terrorists overseas. The US practice of “targeted killing” has resulted in the deaths of thousands of people, including many hundreds of civilian bystanders. While some targeted killings have been carried out in the context of the wars in Afghanistan and Iraq, many have taken place outside the context of armed conflict, in countries including Yemen, Somalia, Pakistan, Sudan, and the Philippines. These killings rely on vague legal standards, a closed executive process, and evidence never presented to the courts … The killings violated fundamental rights afforded to all US citizens, including the right not to be deprived of life without due process of law.
The lawsuit also states:
Defendants’ killing of Anwar Al-Aulaqi was unlawful. At the time of the killing, the United States was not engaged in an armed conflict with or within Yemen. Outside the context of armed conflict, both the United States Constitution and international human rights law prohibit the use of lethal force unless, at the time it is applied, lethal force is a last resort to protect against a concrete, specific, and imminent threat of death or serious physical injury. Upon information and belief, Anwar Al-Aulaqi was not engaged in activities that presented such a threat, and the use of lethal force against him was not a last resort. Even in the context of an armed conflict, the law of war cabins the government’s authority to use lethal force and prohibits killing civilians who are not directly participating in hostilities. The concept of “direct participation” requires both a causal and temporal nexus to hostilities. Upon information and belief, Defendants directed and authorized the killing of Anwar Al-Aulaqi even though he was not then directly participating in hostilities within the meaning of the law of war.
Defendants’ killing of Samir Khan and Abdulrahman Al-Aulaqi was also unlawful. Upon information and belief, neither Samir Khan nor Abdulrahman Al-Aulaqi was engaged in any activity that presented a concrete, specific, and imminent threat to life; nor was either of them directly participating in hostilities. The news media have reported, based on statements attributed to anonymous US government officials, that Samir Khan was not the target of the September 30 strike and that Abdulrahman Al- Aulaqi was not the target of the October 14 strike. If the Defendants were targeting others, they had an obligation under the Constitution and international human rights law to take measures to prevent harm to Samir Khan, Abdulrahman Al-Aulaqi, and other bystanders. Even in the context of an armed conflict, government officials must comply with the requirements of distinction and proportionality and take all feasible measures to protect bystanders. Upon information and belief, Samir Khan and Abdulrahman Al- Aulaqi were killed because Defendants failed to take such measures.
CCR and the ACLU are undoubtedly right, but it is unlikely that they will prevail, even though there are profound questions about the legality of killing people in drone attacks — and particularly of killing people in countries with which the United States is not at war, as that plays horribly into George W. Bush’s dreadful notion of the entire world as an endless battlefield.
As the New York Times noted in a profoundly alarming article six weeks ago, the enthusiasm for extrajudicial killing in the White House is such that, as I described it at the time, President Obama “holds regular meetings to decide who should be on a ‘kill list’ for drone strikes — in Pakistan, Yemen and Somalia,” and “insists on approving the targets of drone raids, which is his primary method of dealing with the perceived terrorist threat, by ‘poring over terrorist suspects’ biographies on what one official calls the macabre “baseball cards” of an unconventional war.'”
Disturbingly, the Times article also noted that President Obama has “embraced a disputed method for counting civilian casualties,” which “in effect counts all military-age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.”
The President is not the only enthusiast for extrajudicial killings, which, to put them in context, mark a return — with new weapons — to a program of assassination that was mired in controversy throughout the 1980s and 90s, and was replaced by extraordinary rendition and torture under the Bush administration.
As Attorney General Eric Holder explained in a speech in March, “Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.”
He added, “Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaida or associated forces. This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The constitution guarantees due process, not judicial process.”
Moreover, the courts have shown no willingness to tackle the government’s assassination program. In December 2010, the ACLU and CCR challenged the authorization for Anwar al-Aulaqi’s death that had been announced in April 2010, filing a lawsuit on behalf of al-Aulaqi’s father, but in the District Court Judge John D. Bates dismissed the case, ruling that al-Aulaqi’s father lacked standing to bring suit, and that the request was “judicially unreviewable.”
Announcing the submission of of this new lawsuit, Jameel Jaffer, the ACLU’s deputy legal director, said, “This suit is an effort to enforce the Constitution’s fundamental guarantee against the deprivation of life without due process of law. The Constitution does not permit a bureaucratized program under which Americans far from any battlefield are summarily killed by their own government on the basis of shifting legal standards and allegations never tested in court.”
CCR Senior Staff Attorney Pardiss Kebriaei added, “When a 16 year-old boy who has never been charged with a crime nor ever alleged to have committed a violent act is blown to pieces by US missiles, alarm bells should go off. The US program of sending drones into countries in and against which it is not at war and eliminating so-called enemies on the basis of executive memos and conference calls is illegal, out of control, and must end.”
I couldn’t agree more.
Note: For more on Abdulrahman al-Aulaqi, see: Michelle Shepard, Drone Death in Yemen of an American Teenager, Toronto Star, April 14, 2012 and Tom Junod, The Lethal Presidency of Barack Obama, Esquire, July 9, 2012.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed — and I can also be found on Facebook, Twitter, Digg, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.
On Digg, cosmicsurfer wrote:
More Bullying, murder and terrorism, American style..Exceptionalism at its most obscene.
Obama carries on in the tradition of Reagan, Truman, Bush, Cheney, Gates, Patraeus, McChrystal, Panetta, Porter Goss, William Casey, McNamara (until he found his soul and it nearly killed him), Johnson (who it psychologically killed when he finally saw what he had wrought) and all the rest of the exceptionalist asses that believe that they can play God because everyone else is just a failed attempt at being us.
For those that think, as far as foreign policy goes, that there is a difference between the parties at those “lofty” reaches? Sorry..Not much. The military industrial complex makes sure of that.
Accountability and transparency – nothing even close has been allowed for nearly a century. I can hope this case breaks it open but it will take much more. No matter how many FOIA wins, how many Wiklileaks, how many Anonymous, it will take the people of the planet to force accountability.
First, the people have to wake up.
Yes, agreed, cosmicsurfer. Please watch the video that accompanies this article – it’s the grandfather of Abdulrahman al-Aulaqi, who was just 16 when a drone attack killed him two weeks after his father. He wasn’t a terrorist. He just wanted to see his dad, who he hadn’t seen since 2009. How can this be right?
On Facebook, Carol Anne Grayson wrote:
Hope they are successful… thanks Andy…
Nancy Tilford wrote:
Every human being deserves a fair trial in every instance.
Thanks, Carol and Nancy. Yes, killing people in countries with which the US is not at war, for reasons that cannot be challenged, is obviously wrong, but what’s particularly depressing is how relatively few people care, even when those killed include children. It’s a very depressing state of affairs.
Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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