Aulaqi Round Two

“http://nationalsecuritylawbrief.com/wp-content/uploads/2012/08/Leah-Chavla-nasser-al-aulaqi-150×150.jpeg” alt=”" width=”150″ height=”150″ />On July 18, 2012, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) filed a petition, Aulaqi v. Panetta, in the District Court for the District of Columbia. The two organizations represent plaintiffs Nasser al-Aulaqi and Sarah Khan, who bring a joint wrongful death action for the killings of three of their family members in lethal armed drone attacks in Yemen. The individual defendants are Leon Panetta, Secretary of Defense; William McCraven, Commander of Special Operations Command; Joseph Votel, Commander of Joint Special Operations Command; and David Petraeus, Director of the Central Intelligence Agency. Nasser al-Aulaqi’s previous suit, in which he sought to enjoin the government from killing his son, Anwar, was dismissed in December 2010 because al-Aulaqi did not have legal standing to sue for his son, and in the alternative, Judge Bates ruled that the case was nonjusticiable as a political question. After that disappointment, civil rights advocates are hoping that this case will advance and will shed some light on currently secret policies and procedures relating to management of the “kill list” and lethal drone strikes.

Plaintiffs name three specific causes of action. The first claim of relief is for the alleged Fifth Amendment violation the deceased suffered, as both their substantive and procedural due process rights were violated by the defendants’ authorization of their subordinates to use lethal force against Anwar and Abdulrahman al-Aulaqi and Samir Khan. The second claim is that of a Fourth Amendment violation, namely the right to be free from unreasonable seizure, again through the authorization and use

of lethal force against the victims. Finally, the third claim of relief is a bill of attainder with respect to Anwar al-Aulaqi because the defendants designated Anwar to a “hit list” in the absence of a judicial trial.

Throughout the complaint, the plaintiffs cite the alarming increase in the use of armed drones in areas not part of the “hot” battlefield, such as in Pakistan and Yemen. The ACLU and CCR argue that such killings are illegal because, since those places fall outside the law of war scope, international human rights law applies under which killing anyone is much more difficult to justify. In the alternative, they argue that, even under the law of war, the killings fail to satisfy the requirements of the law of war, which dictates that the principles of distinction and proportionality must guide any militarily necessary killings. This means that there should have been protections in place to prevent the deaths of persons around Anwar al-Aulaqi, including Samir Khan. The strike that killed Abdulrahman, which occurred about one month after the strike against his father, took place at a restaurant and killed seven other people – in fact, as the complaint mentions, it was targeting another individual, not Abdulrahman, and that individual was later determined to not have even been present at the restaurant.

This case may fare better than the earlier suit because relatives or those who administer the estate are those who rightfully have standing in wrongful death actions. Under common law, a deceased person may not bring suit. However, there are many obstacles. The government may seek to employ the state secrets doctrine to prevent the case from advancing in order to avert a risk to national security by the release of sensitive materials. Nonetheless, given the amount of information presently available in unclassified form on Anwar al-Aulaqi’s life and role within al-Qaeda, advocates may be able to make a good case for why that defense would not be applicable or should not be applicable here.  In the worst-case scenario, the state secrets doctrine would stick, but, in that event, hopefully the Attorney General would refer the case to the appropriate Inspector General(s)

as the basis for an internal investigation.

If the case advances, there is also a pending question of interpretation regarding the bill of attainder claim. Article I, section 9 of the Constitution provides, “No Bill of Attainder or ex post facto Law shall be passed,” indicating that this is a prohibited function of the legislature, not the executive. As Wells Bennett, Visiting Fellow in National Security at the Brookings Institution, pointed out, “plaintiffs do not argue that the statute behind the Al-Aulaqi operation – the AUMF – is itself a bill of attainder, or an unlawful legislative punishment directed at this or that individual or group.”[1] While plaintiffs do not make this claim, undoubtedly the government will attempt to link its targeting program to the “implicit authority” of the AUMF. Plaintiffs’ decision not to cite the AUMF as part of the bill of attainder claim seems to reflect the desire to avoid two potential evils, the first being legitimizing the scope of authority claimed in the absence of explicit provisions authorizing the Executive’s actions and the second being to avoid even the slightest appearance of implying that, if authorized by the AUMF, the actions are legal. This is not the case, and in fact, the illegality of such actions would have to be measured by international law obligations, such as the right to life, which have not been respected.

In short, it is long overdue for a case such as this one. The public has been left without answers, guidance, and transparency on issues important to the freedoms and well being of all. With statements by top government officials claiming the government’s authority to use lethal force abroad against a U.S. citizen,[2] clearly the time has come for an honest discussion and, where necessary, the establishment of appropriate limitations on a thus far unlimited executive power.