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Thursday, September 18, 2014
- Family members of three U.S. citizens killed last year in drone strikes in Yemen filed a lawsuit here Wednesday accusing U.S. intelligence and military officials of violating the victims’ rights under the U.S. constitution and international law.
Prepared by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR), the lawsuit marks a major legal challenge to the U.S. policy of extrajudicial “targeted killings” of suspected terrorists far from traditional battlefields, such as Afghanistan.
“These killings rely on vague legal standards, a closed executive process, and evidence never presented to the courts,” according to the 17-page complaint, which noted that the practice has “resulted in the deaths of thousands of people, including many hundreds of civilian bystanders,” in Yemen, Somalia, Pakistan, Sudan, and the Philippines since 2001.
Such killings have become increasingly controversial, especially under the administration of President Barack Obama, which has increasingly used drones strikes as the “weapon of choice” in combating alleged Islamist extremists. The number of such strikes in these countries has more than doubled since Obama became president in 2009.
Human rights groups and international jurists, including two U.N. special rapporteurs on extra-judicial killings, have questioned the legality of such killings, suggesting they may constitute war crimes.
At the same time, many policy analysts have argued that their impact may be counter-productive in that the collateral damage they sometimes cause both alienates public opinion in countries where they are carried out and aids recruitment by extremist groups.
The suit filed Monday, however, focuses on two specific drone strikes last fall.
The first, which took place last Sep. 30, killed two U.S. citizens: Anwar Al-Awlaki, a Muslim cleric, an effective English-speaking propagandist who, according to the Obama administration, served as “leader of external operations” for Al Qaeda in the Arabian Peninsula (AQAP), and Samir Khan, along with three non-U.S. nationals.
As a result of his activities, Al-Awlaki had reportedly been on a “kill list” maintained by the administration and, as such, was the target of the strike. Khan, who edited aN Islamist magazine associated with AQAP, was not on the list but happened to be travelling with Awlaki when their vehicle was struck, according to U.S. officials.
The second attack took place two weeks later, on Oct. 14, at an outdoor restaurant some 300 kms away. Killed in that strike were Anwar Al-Awlaki’s 16-year-old son, Abdulahman, and six other civilian bystanders, including another teenager.
Speaking on condition of anonymity, U.S. officials told reporters the younger Awlaki, whom they initially insisted was an adult, that Ibrahim al-Banna, allegedly a senior AQAP operative, was the target, although it is not clear that he was there at the time.
“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 U.S. missiles, alarm bells should go off,” CCR senior attorney Pardiss Kebriaei noted Monday.
The plaintiffs in the case include Nasser Al-Awlaqi, the father and grandfather of Anwar and Abdulrahamn, respectively, and Sarah Khan, Samir Khan’s mother.
When information leaked out in 2010 that Anwar Al-Awlaqi was on a kill list, his father, represented by the ACLU and CCR, sued the government.
The suit asked the courts to order the government to disclose the legal standard it was using to place U.S. citizens on such a list and to rule that, outside the context of an armed conflict, the government should be permitted to carry out targeted killings of U.S. citizens only if they posed an imminent threat to life or physical safety.
The trial judge dismissed the case, however, on a procedural point – that Awlaqi’s father lacked “standing” before the court because he could not represent the interests of his son, who was then still alive.
Now that Awlaki is dead, however, ACLU and CCR attorneys said the issue of standing should no longer be an obstacle. They noted that both Awlaki’s father and Khan’s mother are the legal representatives of their deceased family members’ estates.
In answer to the growing controversies over drone strikes, particularly against U.S. citizens, the administration has sought to defend itself, even while it has declined to officially acknowledge responsibility for them.
In a speech in March, Attorney-General Eric Holder offered a partial view of the administration’s legal position, which is reportedly spelled out in a longer memo that remains classified.
“It does not require judicial approval before the president may use force abroad against a senior operational leader of a foreign terrorist organisation with which the United States is at war – even if that individual happens to be a U.S. citizen,” he asserted in an apparent reference to Awlaki’s alleged role and position in AQAP.
While experts have questioned whether Awlaki was indeed a senior operational leader in the group, he reportedly helped recruit the so-called “underwear bomber”, Umar Farouk Abdulmutallab, a Nigerian national who tried to blow up a U.S. commercial jet over Detroit on Christmas Day, 2009.
“‘Due process’ and ‘judicial process’ are not one and the same when it comes to national security,” Holder argued in perhaps the most legally controversial passage in his speech. “The Constitution guarantees due process, not judicial process.”
He also implicitly defended the killings of Khan and Awlaki’s son, insisting that the U.S. complies with the laws of war. Noting that “only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives of war – may be targeted intentionally,” he stressed that “under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage.”
In May, White House Counter-Terrorism Adviser John Brennan went somewhat further than Holder, confirming for the first time officially that the U.S. uses drones “against specific Al-Qaeda terrorists”. But he did not disclose any further information about specific strikes or the criteria by which used by the CIA or its military counterparts decide for conducting strikes.
Later that month, the New York Times published previously unknown details about how the “kill list” is drawn up, a process that it said involves more than 100 members of the government’s national-security bureaucracy and one in which Obama himself personally approves every target.
Plaintiffs’ attorneys noted Wednesday that Obama was named as a defendant due to the immunity accorded the president during his term in office.
The administration had no comment on the lawsuit, but experts said it will likely seek its dismissal on the grounds that it risked disclosing “state secrets” and that it raises a “political question” that the judiciary is not fit to review. The latter doctrine permits the courts to avoid cases that are particularly controversial.
“The killings at the hart of the case – of three U.S. citizens, including a 16-year-old, in Yemen where the U.S. was not at war – provide the judiciary a chance to do what Americans tell judges around the world to do,” said Mary Ellen O’Connell, an expert on international law at the University of Notre Dame who has been particularly outspoken against targeted killings. “Have the courage to apply the law to those wielding political power.”
As to the state secrets argument, plaintiffs’ attorneys said so many government officials have spoken about the drone programme on the record that the administration could not credibly claim that whatever came out in trial could jeopardise national security.
“This suit is an effort to enforce the Constitution’s guarantee against the deprivation of life without due process of law,” said Jameel Jaffer, the ACLU’s deputy legal director. “The Constitution does not permit a bureaucratised programme under which Americans far from any battlefield are summarily killing by their own government on the basis of shifting legal standards and allegations never tested in court.”
*Jim Lobe’s blog on U.S. foreign policy can be read at http://www.lobelog.com.