Targeted Killing. Of Who?

By William Fisher

A Federal judge yesterday dismissed a court challenge to the policy of the administration of Barack Obama to target and execute U.S. citizens outside combat zones who do not pose an imminent threat.

Judge John Bates found that the plaintiff, Nasser Al-Aulaqi, did not have “standing” before the court -- the right to assert the interests of his son, Anwar Al-Aulaqi, who it is believed has been targeted for assassination. For this reason, the judge did not consider the merits of the case.

Judge Bates ruled that “there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches' and judicially unreviewable." Regarding the latter "political question" issue, the judge acknowledged "the somewhat unsettling nature of its conclusion."

Bates called the case "unique and extraordinary," and said it presented "[s]tark, and perplexing, questions" and found that the merits "present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure."

Ultimately, however, he dismissed the case on procedural grounds and found that "the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day…"

The suit had been brought by The Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) in August.

Following the granting the government's motion to dismiss the case, Jameel Jaffer, Deputy Legal Director of the ACLU, said, "If the court's ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation."

He added, "It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty. It's worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context. We continue to believe that the government's power to use lethal force against American citizens should be subject to meaningful oversight by the courts."

Jonathan Manes, a legal fellow with the National Security Project of the
ACLU Foundation, told IPS, “The court has drastically limited who can come into court to challenge a targeted killing before the fact. That said, if a targeted person is killed, the targeted person's estate could probably try to bring a wrongful death action after the fact.”

He continued: “The trouble is that Judge Bates's ruling suggests that courts should have no role in determining the lawfulness of a targeted killing even after the fact -- for example in a wrongful death lawsuit -- even if the victim is a U.S. citizen. The decision takes the view that killing citizens abroad in the name of national security is a ‘political question’," and so is reserved to the exclusive judgment of the President.”

“Under this view,” he said, “the courts can have no role whatsoever in assessing compliance with the Constitution -- either before or after a targeted killing occurs -- because those questions are reserved exclusively to the President. This is a very dangerous position, and is fundamentally inconsistent with the Constitution's guarantee of checks and balances.”

Manes drove home his point: Judge Bates's decision “would effectively grant the President unreviewable authority to order the targeted killing of Americans located far from any combat zone who pose no imminent threat. According to Judge Bates, the rules governing targeted killing of citizens can be written and applied in secret, with no independent checks at all. We reject the idea that the President has such a sweeping power over the lives and deaths of citizens abroad.”

The ACLU and CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, U.S. citizen Anwar Al-Aulaqi. The lawsuit asked the court to rule that, outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety. The lawsuit also asked the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.

Judge Bates asked but did not answer the troubling question, "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"

Meanwhile, A Yemeni judge ordered police on Saturday to capture "dead or alive" Anwar al-Awlaki, whom the U.S. government portrays as a radical Muslim cleric who has been linked to several terror plots in the U.S. He has been tied to the cargo plane bomb plot last month, the Detroit underwear bomber, and may be connected to the attempted Times Square bombing.

Other human rights organizations are also weighing on this controversial legal battle. Human Rights Watch (HRW) called on President Barack Obama to “immediately clarify [the government’s] legal rationale for targeted killings.

In a letter to President Obama, HRW Executive Director Kenneth Roth said the government “should answer the fundamental questions of how his administration determines whether a person may be targeted”.

He added, “Such operations may be lawful under certain circumstances, but absent clear boundaries, they will inevitably violate international law and set a dangerous precedent for abusive regimes around the globe.”

The Obama administration dramatically expanded the use of targeted killings outside of traditional battlefields following the attacks of September 11, 2001. Many of these killings are conducted by the Central Intelligence Agency through the use of Unmanned Combat Aircraft Systems (drones). The US government asserts that it has authority under international law to use lethal force outside of clearly defined war zones because it is engaged in a global armed conflict with al Qaeda and associated forces.

Roth’s letter to Obama said the “US government claims that the entire world is a battleground in which the laws of war are applicable undermine the protections of international law. This discredited notion invites the application of lethal force by other countries in situations where the US would strongly object to its use.”

HRW called on Obama to “provide greater clarity on how the US government determines when a targeted killing in an armed conflict situation meets the requirements of distinction and proportionality under the laws of war and the measures it is taking to minimize civilian harm. During armed conflict, only combatants or civilians who are actively participating in hostilities may be lawfully targeted.”

Roth offered a number of detailed recommendations, including: Do not define all operations as part of a "global armed conflict"; define who may be legally targeted; ensure compliance with the laws of war; ensure compliance with international human rights law; improve transparency and accountability; minimize harm to civilians; and avoid dangerous precedents;