Monday, August 30, 2010
The ACLU and the Center for Constitutional Rights yesterday filed suit in federal court in the District of Columbia to stop the administration's targeted killing of Anwar al-Aulaqi, a U.S. citizen living in Yemen and allegedly plotting terrorism against the U.S. (we think, although the government hasn't said precisely why he's targeted). The complaint, brought by al-Aulaqi's father on his behalf, seeks a declaration that the targeting is unconstitutional; it also seeks a permanent injunction prohibiting the government from killing al-Aulaqi unless he presents a concrete, specific, and imminent threat to life or physical safety and no lesser force will do. The groups also filed for a preliminary injunction in which, in their argument on "likelihood of success," they lay out their legal case. We last posted on the case when the groups received their license to sue from the Treasury Department.
The groups argue that the targeted, extra-judicial killing violates the Fourth and Fifth Amendments, unless the target poses an imminent threat of death or serious physical injury, and unless lethal force is the last resort. They also argue that the targeted killing violates international customary law and treaty obligations, which carry the same requirements.
The plaintiff's arguments so far hinge on the assumption that the targeted killings are outside the context of an armed conflict--that the targeted killing of a U.S. citizen living in Yemen, a country with which the U.S. is not at war, is not subject to the laws of war.
But as best we can reckon, the government justifies its targeted killing program as part of the conflict with al Qaeda, the Taliban, and associated forces. Harold Koh, the State Department Legal Adviser, said as much in his speech to the American Society of International Law last spring. Koh argued that the program is justified as self-defense under the international law of war and Congress's 2001 Authorization for Use of Military Force. According to Koh, the law of war allows extra-judicial, targeted killings of individuals planning attacks against the U.S. under certain circumstances, and it does not require the U.S. to provide Fourth and Fifth Amendment processes to those belligerents before killing them. We critique Koh's analysis here.
If this turns out to be the government's legal defense, the central first question in the case will be: Is the targeted killing of al-Aulaqi part of the government's conflict with al Qaeda, the Tablian, and associated forces? The answer to the question will give us an important data point in plotting the parameters of the "war on terror" and the government's authority to prosecute that war.
Koh made another comment in the speech that may give a partial preview of the government's defense in the al-Aulaqi case: He said that he couldn't comment publicly on much of the targeted killing program. Taken together with the administration's past practice, this statement may suggest a claim, or even an entire defense, based on the State Secrets Privilege--a troubling possibility.