Will the Government Finally Use a Lawsuit as an Opportunity to Explain the Anwar al-Awlaki Killing?

When the ACLU and CCR represented Nasser al-Awlaki in a suit to prevent the government from killing Nasser’s son Anwar unless the government could prove he was an imminent threat, Judge John Bates threw the case out on standing grounds. The civil rights groups think they’ll face no such problem on the suit alleging wrongful death they just filed suing Leon Panetta, David Petraeus, SOCOM Commander William McRaven, and JSOC Commander Joseph Votel. That’s because Nasser al-Awlaki–suing on behalf of both his son and grandson, Abdulrahman–and Sarah Khan–suing on behalf of her son Samir, who was killed in the strike on Anwar–represent the estates of the dead men, so they should clearly have standing.

If that’s right, the courts will have to find some other way to punt on this issue. Alternately, for the first time, the government will have to provide evidence to a court to judge whether or not it wrongly killed three American citizens.

That’s one of the big issues behind this suit–an issue which I hope to follow up on later. As the Director of ACLU’s National Security Project, Hina Shamsi, noted, while the facts alleged against Anwar (though not against his son or Samir Khan) are very serious, none of them have been attested in court yet (the government submitted some of the facts in the Abulmutallab sentencing, but only after the trial was over).

We don’t want to minimize the seriousness of the allegations [against Anwar al-Awlaki]. It is the role of the courts to distinguish between actual evidence and mere allegations.

She describes this as an opportunity for the government. If the government has evidence Awlaki presented an imminent threat, this case is an opportunity to present the evidence so it can be tested.

Of course, the government has had that opportunity three times before: in the earlier Nasser al-Awlaki suit, the Abdulmutallab trial, and the FOIA response. The government’s efforts to avoid using that opportunity have gotten more and more ridiculous. But since they appear to have no shame on this point, I’m betting they find a way to avoid doing so now.

8 replies
  1. pdaly says:

    Wouldn’t mind seeing Nasser al-Awlaki add to the wrongful death suit the court that refused Nasser standing in his initial request for a court injunction against the President’s kill list.

    Couldn’t Nasser argue that specific court was, in effect, an accessory to a foreseeable extra-judicial killing of his son?

  2. rugger9 says:

    IANAL, but that may not be possible if the court considered its evidence with due diligence. Even if the decision is incorrect, there would have to be some smoking gun if you will that shows the deliberate attempt by the court to railroad this from the get go.

    Negligence isn’t punishable, gross negligence [i.e. continuing to rule that way in defiance of black-letter law] or malfeasance is punishable.

  3. pdaly says:

    IANAL either and your comment rings true.

    However, State Bars have ‘life-threatening criminal act’ exceptions to the ‘attorney-client privilege’ ethical rule.

    Why couldn’t courts make similar exceptions to black letter of the law determinations of standing when learning (in the newspapers) or hearing from the ACLU/Nasser al-Awlaki about the unusual case of a Presidential kill list containing the name(s) of American citizens none of whom have been charged with a crime in a court of law?

    It seems a willing court would have found the wiggle room for a court hearing with such a fact pattern.

  4. ondelette says:

    And if the government again claims that these were legitimate military objectives in a war and cites international law and refuses to release information further documenting ‘continuous combat function’? The cases will get thrown out again. The appeal to US citizenship has no meaning in such context, whatsoever and should not. CCR knows that, they argue cases in international law in other fora. Which means all this is a tactic on their part.

  5. pdaly says:

    I’d like to quote Mary in her comment from this Oct. 1, 2011 thread http://www.emptywheel.net/2011/10/01/anwar-al-awlaki-assassination-double-secret-illegitimacy/
    Mary writes about the “Bill of Attainder” prohibition. Her angle has not been mentioned in the media as far as I am aware.


    “@MadDog: Exactly. This is the gist of the bill of attainder prohibition – – the Executive can’t execute its enemies on its own fiat and the Legislature can’t give the Executive that power either.

    Back in some of JW’s Pakistan threads, there was discussion of how Brennan et al were laying the cover for the non-hot battlefield as a hot battlefield and the non-imminent threat as an imminent threat. It was coming up in the context of the Haqqani situation but you can easily see why Brennan and Obamaco were laying as much foundation as they could.

    EW – that ties a bit to the support you are quoting Goldsmith as providing, i.e., that the assassination of a US citizen in another country where we are not at war is *legal* “because the other country consents to them or is unable or unwilling to check the terrorist threat, thereby bringing America’s right to self-defense into play.”

    Not having read Goldsmith (I don’t have time for all the extra showers that would be necessary) I’m guessing he doesn’t delve too much into the consent question, but since he relies on an “or” and not an “and” that’s a pretty Goldsmith doctrine he’s floated. If a US Executive branch agent has an axe to grind with a US citizens and can get a foreign government to consent, that US citizen can be taken out. And everything can be classified and be unreviewable.

    No wonder the Goldsmith right wing wants to do in PBS – Conjunction Junction is threat to some of their more necessary legal theories.

    Kudos for the win – how nifty that you can raise your children in a “Homeland” that supports (based on your helpful legal input) torture and disappearance and concentrated population camps and assassinations, of even its own citizens and that will trawl the international waters to find people of the right religious affiliation to subject to the aforegoing policies of torture, disappearance, concentrated population detention and assassination. Lucky are the children who aren’t just going to be raised in that New Nation, but who can point to their parents as having such pivotal roles in its formation.”

  6. ondelette says:

    The argument is one of international law, not right wing or Goldsmith.

    It goes as follows: If there is an attack on a high party (signatory to the laws of war, nation state) by an armed group from within another high party, or a threat, then that attacked country can claim the right to retaliate. The country in which the group is located has a choice: It can either lay claim to sovereignty of its borders, in which case it is responsible for the attack — it must either get rid of the group or be attacked as responsible for it — or it must allow the other country to fight the group within its country at the sacrifice of its sovereignty of its borders.

    Furthermore, if parties are at war, be they nations or not, those who have combatant status or the equivalent (civilians with “continuous combat function” in the event of a “common Article 3” conflict or other non-international armed conflict) may be attacked at any time, on the battlefield or not.

    The disputed part of the doctrine isn’t whether or not that doctrine exists, it does and is part of customary IHL (which applies to all countries whether they’ve signed treaties or not). It’s that the doctrine became customary law when it applied to cross-border incidents, not “trans-national” incidents because there were no armed groups trying to promote attacks far away from borders, only rebellions and insurgents crossing the borders to neighboring countries. Many believe it should only apply in the limited setting and the US used to believe that too, before September 11th. Our official position as a nation has changed.

    That’s why I keep making comments that the administration doesn’t see the al Awlaki case as a US citizen case at all, they see it as a law of war case. It isn’t a left-wing right-wing thing, really. So your characterization above would really surprise a lot of pretty left wing IHL lawyers, who argue against the US position on the case but think the whole “due process, US citizen” think is weird.

  7. pdaly says:

    ondelette, you have not made the case that Al Qaeda of the Arabian Peninsula (AQAP) is part of alQaeda–it (AQAP) did NOT exist at the time of 9/11/2001 attacks on the Twin Towers in NYC nor the attack on the Pentagon in DC. So the AUMF does not authorize Bush/Obama to go to Yemen and after AQAP.

    You have not provided any facts that the 3 Americans killed in the predator drone attacks in Yemen were in any way operational (i.e., at war with the US) and for good reason–the US government has not provided any proof of al Awlaki’s operational capacity beyond the government merely claiming such.
    Yemeni citizens in addition to the three Americans were also killed in the predator drone blasts.
    These people were not combatants on a battlefield. They were customers in civilian clothes at a restaurant.

    The US is not at war with Yemen. This gets to Mary’s criticism of the expansion of the “hot battlefield” to places, situations and countries with which the US is not at war. It also underlines the misuse of the term “imminent danger” to American citizens here in the good ole USA.

    The US claims it had the permission of the Yemeni government to attack al-Awlaki by predator drone.
    The US also claims it was too dangerous to go to Yemen in person to get al-Awlaki because Yemen is a failed state.

    Yet, if the US wants to argue that Yemen is a failed state, then by what legitimate right can the Yemeni government (in the US’s eyes) provide permission to America to go after one of its Yemeni citizens? (al-Awlaki is a dual American and Yemeni citizen).

    The US boasted after al-Awlaki’s death by drone that he had been under close surveillance thereby allowing for a surgical drone strike that minimized collateral damage (deaths). Yet, the government probably needed men on the ground to be so certain of al Awlaki’s movements–undercutting the American argument that it was ‘too dangerous’ to go into Yemen and capture him alive. According to Daniel Klaidman (author of new book Kill of Capture) the US had al Awlaki under surveillance for as long as three weeks before assassinating him.

    The US has not met any of the requirements that you claim it is following in ‘defending itself under international law.’ If you think it has, you have provided no proof of such in your comment above.

  8. beowulf says:

    “That’s why I keep making comments that the administration doesn’t see the al Awlaki case as a US citizen case at all, they see it as a law of war case.”

    Wait a second, so the Underwear Bomber case entailed civilian criminal prosecution for one accomplice and a law of war targeted killing for the other? How does that work?.

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