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Terror Tuesday: Accountability and the courts on trial

Above: Abdulrahman Al-Aulaqi, a 16 year old US citizen killed in a US extrajudicial drone strike

The American public rarely encounters the faces and names of those we vaporize with our drones.

Above is an image of one such victim: Abdulrahman Al-Aulaqi, a Denver-born sixteen year old, who was at the receiving end of a drone-fired missile on October 14, 2011 as he ate at an outdoor restaurant in southern Yemen with a teenage cousin who was also killed in the strike. (Here are some other photos.)

He is not known to have been involved in any terrorist group or activity. Was his crime having a father – whom he had not seen in two years – who had two weeks previously been successfully checked off the government’s “kill list”? Or was the strike intended for one of its (at least) six other victims – or someone who was not in fact present at the time?

Tom Junod, writing in Esquire about the “Lethal Presidency of Barack Obama,” states that “what is most striking about the death of Abdulrahman al-Awlaki is both the lack of outrage and the lack of information about it — or, to be more exact, the lack of outrage over the lack of information.”

His father Anwar Al-Aulaqi, born in New Mexico, had been killed by a CIA/JSOC-directed drone in Yemen as he rode in a car with another American who was reportedly not on any “kill list” – 25-year-old Samir Khan from North Carolina, who was deemed to be the editor of a jihadi publication.  

On July 18, the American Civil Liberties Union and the Center for Constitutional Rights (CCR) sued CIA head David Petraeus, Department of Defense chief Leon Panetta and other senior Pentagon and CIA officials on behalf of relatives of the three American citizens. The complaint that was submitted to the federal District Court for the DC Circuit argues that their killing was a violation of the Fifth Amendment’s guarantee against the deprivation of life without due process and other constitutional protections.

Jameel Jaffer, the deputy director of the ACLU, states that the lawsuit is “about accountability. If the government is claiming the power, as it seems to be, to kill any American who is deemed to be a national security threat without judicial review of any kind, then we believe the government has an obligation to explain its actions."

The complaint points out that these so-called targeted killings took place “outside the context armed conflict” and relied on “vague legal standards, a closed executive process, and evidence never presented to the courts.”

It reminds the government of its legal obligations: 

“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” – a threat which it maintains does not apply in the case of these killings.

Late in 2011, the Obama Administration contended that there was precisely such a threat when it gave The New York Times a hint of the legal rationale it used to justify the killing of Al-Aulaqi. It has since then shunned accountability and refused to make public the secret memo laying out its full legal justification. 

Earlier this year, Attorney General Holder floated the novel view that “’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.”  The fact that Al-Aulaqi had not been charged with any crime or tried in any court did not mean he could not be executed by the government acting on information processed by the executive branch.

These arguments make it unlikely that the Obama Administration will engage with the ACLU and CCR on the constitutional terrain laid out in the complaint. It had already scored a victory in an earlier legal proceeding when the ACLU and CCR went to court on behalf of Al-Aulaqi’s father – one of the plaintiffs in the current case – asking for the government to be barred from killing his son unless it could demonstrate that he represented an imminent threat to life. 

On December 7, 2010, Judge John Bates of DC district court threw out that case on the grounds that Nasser Al-Aulaqi “lacked standing” to represent his son and that the court could not interfere in what were “political questions” for the executive branch to decide.

The government will not be able to argue that the father and grandfather of two of the victims and mother of the third lack “standing” in this wrongful death lawsuit.  Chances are that the Obama Administration will instead ask the court to dismiss the case on the grounds of “state secrets privilege,” arguing that allowing it to proceed would jeopardize national security.

A little recent history is in order. As a candidate, Senator Obama had criticized the Bush Administration’s frequent use of the state secrets privilege doctrine to get lawsuits thrown out of court.  

But he had only been in office a few weeks when President Obama, on February 9, 2009, agreed with his predecessor in an ACLU case involving the “extraordinary rendition” and torture of Binyam Mohamed and four other Guantanamo detainees and told the Ninth Circuit Court of Appeals that it should dismiss the case on “state secrets” grounds. Allowing it to go forward, the Bush-Obama Administrations argued, would jeopardize our national security by revealing things best kept secret.

On April 20, 2009, a three-judge panel of the Ninth Circuit Court rejected that argument and said the lawsuit could go on. The judges ruled that state secrets privilege could only be invoked with respect to specific evidence, not an overall lawsuit.

Obama’s Justice Department appealed that ruling, and the case went before the entire Ninth Circuit Court of Appeals. In September 2010, by the slender vote of 6-5, the court came down on the side of the government

The court’s decision rehearses the equally slender constitutional history of the state secrets doctrine, which is based on two Supreme Court rulings: one from the post Civil War era involving an agreement to keep secret the status of a spy and US v. Reynolds (1953), when the Air Force sought to keep secret material about the crash of a military plane in order to hide the fact that the crash was caused by its own negligence

In refusing to go forward with the rendition lawsuit, the six-judge majority of the Ninth Circuit declined to offer “a detailed definition of what constitutes a state secret,” adding that they were prevented from “explaining precisely which matters the privilege covers lest we jeopardize the secrets we are bound to protect.” They acknowledged that “this case presents a painful conflict between human rights and national security”- and opted to come down solidly on the side of national security.

But they insisted that just because the judicial branch has closed its door to torture victims, this does not mean they are denied all relief. Where could they go if not to the courts? Well, the judges mused, perhaps the executive branch could give them reparations similar to those given interned Japanese Americans (50 years later)…or perhaps Congress could investigate the misdeeds of the executive branch and authorize remedial legislation.

The five dissenting judges found their colleagues’ recommendation that torture victims look elsewhere for relief “elevates the impractical to the point of absurdity.”  It is the job of the courts to carry out their constitutional duty. 

“The state secrets doctrine is a judicial construct without foundation in the Constitution. Yet its application often trumps what we ordinarily consider to be due process of law,” they wrote in their strongly-worded dissent.

Will the DC court rule in the current widely-publicized “targeted killing” case that the courts have no business deciding “political questions” best left to the executive branch – especially if “state secrets” are implicated? Will it reinforce Attorney General Holder’s interpretation of “due process” as a function of the White House and not just the judicial branch?

If it does, our constitutional system of checks and balances will suffer another grievous blow, and impunity will – yet again – trump accountability. 

© 2021 ACLU of Massachusetts.