A Legal Challenge to Targeted Killings

Does the Executive Branch—including, specifically, the Pentagon and the CIA—possess unreviewable power under the US Constitution to carry out targeted killings of Americans overseas?

A lawsuit filed this morning by the ACLU and the Center for Constitutional Rights poses the question, one that is hardly hypothetical.  The plaintiffs in the case, Nasser al-Aulaqi and Sarah Khan, are close relatives of three American citizens who were killed in US drone strikes last year.

The suit covers much of the same ground raised in a previous suit, Al-Aulaqi v. Obama, which was brought by Nasser al-Aulaqi in 2010.  That prior case, which was dismissed on jurisdictional grounds, sought to prevent the killing of al-Aulaqi’s son, Anwar al-Aulaqi; the current case seeks damages for his death, as well as for the deaths of two other Americans.

Like its predecessor, the lawsuit makes the claim that, outside of armed conflict, the Constitution’s fundamental guarantee of due process of law bars targeted killings except as a last resort to avert a “concrete, specific, and imminent threat to life or physical safety.” It also asserts that, whatever the context, the government must take all possible steps to avoid harming civilian bystanders when it uses lethal force.

But while the case directly relates to the government’s power to kill, it also raises challenging questions for democracy.  At stake is not only whether US security forces can engage in targeted killings outside of armed conflict, but also whether they can do so via a secret process, with no judicial scrutiny, and no real possibility of an informed public debate.

A Death Foretold

Two of the three US citizens whose killings are at issue, Samir Khan and Anwar al-Aulaqi, were killed in a US drone strike in Yemen in September 2011.  The strike apparently targeted al-Aulaqi, who the US claimed was a terrorist operative, but it also killed at least three other people, including Khan.

Abdulrahman al-Aulaqi, the third American to be killed in Yemen last year, was Anwar al-Aulaqi’s 16-year-old son.  He was killed two weeks after his father, in a drone strike that was said to have been aimed at an Egyptian terrorist suspect but that instead killed at least seven other people.

Anwar al-Aulaqi’s killing was no surprise.  A Muslim cleric with dual U.S.-Yemeni citizenship, al-Aulaqi was reportedly put on a CIA/military “kill list” sometime before January 2010.  Although he was never formally charged with a crime, US officials claimed that al-Aulaqi played an operational role in the local Al Qaeda affiliate, helping organize “training camps in Yemen in support of acts of terrorism” and providing instructions to Umar Farouk Abdulmutallab, the so-called underwear bomber.

Al-Aulaqi’s father Nasser filed suit in US court in August 2010 to try to prevent his son’s killing.  As the court adjudicating the suit pointed out, it was “unique and extraordinary,” raising crucially important questions about the scope of executive power, the meaning of constitutional protections against the deprivation of life without due process, and the breadth of the post-9/11 legal framework.

Yet the court never reached these substantive issues.  Ruling that Nasser al-Aulaqi had no legal right to stand up for his son, and that the case raised “political questions” not subject to judicial scrutiny, the court dismissed the suit.

The end result, as the court acknowledged in a profoundly understated phrase near the end of its opinion, is “somewhat unsettling”: there are circumstances, whose scope remains unclear, in which the Executive has unilateral power to kill US citizens overseas.

Less than ten months after the court issued its ruling, al-Aulaqi was dead.

Political Questions without Political Accountability

In the 2010 al-Aulaqi suit, the court made much of the fact that the younger al-Aulaqi had not chosen to bring the suit himself. “Plaintiff has failed to provide an adequate explanation for his son’s inability to appear on his own behalf,” the court explained, asserting that this omission was “fatal” to the success of the suit (in hindsight, perhaps not the best choice of words).

With Anwar al-Aulaqi’s death, this barrier to the litigation is gone.  The key obstacle that the present suit will face is the political question doctrine, codified in such precedents as Baker v. Carr, Gilligan v. Morgan, and El-Shifa Pharm. Indus. Co. v. United States.

The Court of Appeals for the DC Circuit, dismissing a case on political question grounds in 2005, asserted that in matters of foreign policy and national security, the question of whether “drastic” and possibly abusive measures should be taken “is not the stuff of adjudication, but of policymaking.” In theory, the political question doctrine keeps policy decisions in the hands of those who are, as the al-Aulaqi court emphasized, “most politically accountable for making them.”

Yet political accountability presupposes public access to information. The public cannot meaningfully evaluate a policy whose contours are secret; nor can it make fair judgments as to the culpability of individual terrorist suspects without any real knowledge of the evidence against them.  Democracy cannot exist without government transparency; hence we have congressional hearings, freedom of information laws, and public trials.

With the government’s targeted killing policy, we have the opposite of transparency: secret legal memos, secret evidence and a secret decision-making process. Indeed, a striking characteristic of the complaint that was filed this morning is the number of claims that are made “upon information and belief,” rather than as straight allegations.  Hard information about the substance of US targeting policies is scant.

As much as it is a claim for civil damages, the present case is a plea for government transparency.  Right now, the government has it both ways.  Not only have its policies been free of judicial scrutiny, they have been protected from meaningful public debate.