ACLU and CCR Sue to Stop Targeted Killings

From a joint press release:

The American Civil Liberties Union and the Center for Constitutional Rights (CCR) today filed a lawsuit challenging the government’s asserted authority to carry out “targeted killings” of U.S. citizens located far from any armed conflict zone.

The authority contemplated by the Obama administration is far broader than what the Constitution and international law allow, the groups charge. Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific and imminent threats of death or serious physical injury. An extrajudicial killing policy under which names are added to CIA and military “kill lists” through a secret executive process and stay there for months at a time is plainly not limited to imminent threats.

“The United States cannot simply execute people, including its own citizens, anywhere in the world based on its own say-so,” said Vince Warren, Executive Director of CCR. “The law prohibits the government from killing without trial or conviction other than in the face of an imminent threat that leaves no time for deliberation or due process. That the government adds people to kill lists after a bureaucratic process and leaves them on the lists for months at a time flies in the face of the Constitution and international law.”

The groups charge that targeting individuals for execution who are suspected of terrorism but have not been convicted or even charged – without oversight, judicial process or disclosed standards for placement on kill lists – also poses the risk that the government will erroneously target the wrong people. In recent years, the U.S. government has detained many men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable.

According to today’s legal complaint, the government has not disclosed the standards it uses for authorizing the premeditated and deliberate killing of U.S. citizens located far from any battlefield. The groups argue that the American people are entitled to know the standards being used for these life and death decisions.

“A program that authorizes killing U.S. citizens, without judicial oversight, due process or disclosed standards is unconstitutional, unlawful and un-American,” said Anthony D. Romero, Executive Director of the ACLU. “We don’t sentence people to prison on the basis of secret criteria, and we certainly shouldn’t sentence them to death that way. It is not enough for the executive branch to say ‘trust us’ – we have seen that backfire in the past and we should learn from those mistakes.”

CCR and the ACLU were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government’s decision to authorize the targeted killing of his son, U.S. citizen Anwar Al-Aulaqi, whom the CIA and Defense Department have targeted for death. The complaint asks a court to rule that using lethal force far from any battlefield and without judicial process is illegal in all but the narrowest circumstances and to prohibit the government from carrying out targeted killings except in compliance with these standards. It also asks the court to order the government to disclose the standards it uses to place U.S. citizens on government kill lists. [my emphasis]

For the backup documentation, go here or here.

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  1. klynn says:

    It also asks the court to order the government to disclose the standards it uses to place U.S. citizens on government kill lists.

    This is a great statement/request to the court.

    An important disclosure.

    • timbo says:

      Maybe it should disclose the logic in even having “kill lists”. That should be very interesting, especially for a court to hear.

  2. BoxTurtle says:

    Oh, this will be interesting. What if the court issues a restraining order until the issue is settled?

    Boxturtle (This looks like the suit I’ve been hoping for)

  3. phred says:

    I love the ACLU and CCR — two of my favorite organizations on earth. Good for them.

    I hope they don’t run into any difficulties with standing &/or state secrets. I can’t imagine our Article 3 branch giving that much latitude to the Article 2 branch, but then my imagination has been insufficient before…

    • BoxTurtle says:

      I don’t think the father of a person the government has offically acknowledged to be on the hit list will have any problem with standing. The government will likely try to keep the criteria secret, but the judge will insist on a classified filing with details.

      IMO, a restraining order is critical. If the judge does not issue one, ObamaLLP will stall and delay as long as they can. If he does issue one, ObamaLLP will file paperwork promptly to get it lifted.

      Boxturtle (Suspects ObamaLLP would violate that order anyway and dare congress to impeach)

        • BoxTurtle says:

          If you were working for ObamaLLP, how would you argue standing or not?

          Boxturtle (Not implying that your moral standards would allow you to take a DOJ job)

          • bmaz says:

            Um, I would say that the only individual that could make that argument is Awlaki himself and I await his arrival to do so.

            • phred says:

              Yeah, he’ll be on the same flight with Assange… Any day now… May be best not to hold your breath ; )

            • phred says:

              Seriously though, isn’t a death threat sufficient reason to not show up in court? I mean usually the government is supposed to protect a person from such things, but obviously that is not true in this case. So can someone else bring the case on the threatened person’s behalf? Or would Awlaki himself have to bring the suit? And if he does, does he have to appear in person? I am endlessly puzzled by the rules of standing…

              • bmaz says:

                No, anyone else representing him would be giving material support to a terrist! Have you not been paying attention to the “raging liberal” Obama just appointed to the Supreme Court??

                • phred says:

                  I try not to, but it’s kinda like watching a train wreck… you can’t help yourself, but you also can’t quite handle the disgusting scene playing out before you.

              • Mary says:

                Round I in this case was earlier this month. As lawyers were getting ready to make filings, Geithner/Treasury stepped in to freeze assets. At that point, it became “illegal” (thank you Justice Kagan) for lawyers to try to prevent their client from being assassinated, without getting *licensed* by the Treasury Dept.

                Seriously.

                As Treasury sat on the applications, CCR & ACLU ended up filing one suit against Geithner/Treasury attacking the statutes/regs that made it illegal. Almost immediately after they filed the complaint attacking the legal basis for preventing lawyers from proceeding without a license, Obamaco granted the license. Blink.

                So now CCR & ACLU are filing what they were going to file originally – a suit against Obamaco. But you have a couple of different layers. The press releases I’ve seen and some of what EW has linked here and in earlier posts she’s done (I haven’t clicked through everything, so I may have missed something) indicate that they are acting at the behest of Al-Awlaki’s father.

                Sometimes, when someone does not have a guardian, but they are operating under some kind of a disability, the court will allow someone someone to make the case for the missing party as that missing party’s “next friend.” I am assuming (but may be wrong – they may be doing something more directly) that the filings that are being made are being made for the father as “next friend” of the son, with the disability being a kind of unique one for the courts – that the govt has authorized the son to be assassinated if he tries to surrender himself to the court.

                So if there is a next friend filing – that would go to the standing issue I think, but would be a helluva thing to have to argue to or have the Exec respond to in court. It might be that they are making some kind of alternative claim on behalf of the father in his own right – not as next friend – or some kind of facial constitutional attack – but as bmaz has noted, those would raise big standing issues.

                In addition to standing, you have a weird issue on jurisdiction too, imo, although this is not an area I know a lot about (and would kind of hope no one knows a lot about – given its assassination theme). On the one hand, an Al-Awlaki type might want to, if he ever does end up before a court, makes some subject matter jurisdiction claims as to whether or not his blathering in Yemen can be treated as an actionable crime in the US. OTOH, if he wants the US courts to act on Executive branch assassination orders for him, he kind of has to avail himself of the courts.

                So they have to be treading a bit gingerly, to make sure they are asserting their next friend claim without otherwise waiving jurisdiction arguments with respect to, for example, his liability under the US criminal code for speech in Yemen.

                Be interesting – Assassination and the Obamanation.

                • fatster says:

                  Seems it’s his father.

                  “With the license now issued, the ACLU and CCR this afternoon filed a lawsuit on behalf of Anwar Awlaki, with Awlaki’s father as the named plaintiff, to prevent the Obama administration from proceeding with Awlaki’s due-process-free assassination.”

                  LINK.

                • phred says:

                  Thanks for the great recap Mary. I have always admired your ability to remember details.

                  It will be interesting to see how this case unfolds. I still can’t believe it is necessary in the United States of America. What a travesty.

                • bmaz says:

                  Yeah, there is more to this than I can easily wrap my puny little mind around. Does a citizen that has been so devalued as to have lost due process before execution – by the way, is that a a de facto stripping of citizenship?? There have been proposals to view it just so; are they Constitutional? – even have the right to have a “next friend” approach an Article III court? There are easily a dozen, or far more, of these kind of head scratcher issues.

                  This shit is beyond sublime.

                  • bobschacht says:

                    Ah, but in war, anything goes. Or that seems to be the American modus operandi, going back at least to WW-I, according to Jerry Nadler. Even if it’s a fake war that hasn’t really been declared by Congress. Against an enemy that seems to be redefined almost every day. War without end. Amen.

                    Bob in AZ

                  • pdaly says:

                    And if al-Awlaki is murdered before this case goes to court, is the case mooted? Or does his father now have new standing? (or is the father now without standing because he is now deemed a terrorist for supporting his late supposed-terrorist son?)

                    • b2020 says:

                      Yeah, I would think that the CIA and/or the WH would re-double their effort to kill Anwar Al-Aulaqi iff the court dares to take the case, just to make a point. This could be doubly true if there was any aninosity between CIA and WH over past and present.

    • phred says:

      Somewhat O/T…

      So yesterday I happened to go to the airport to pick up the hubby and as I passed the maze funneling people through security I saw a little sign (complete with pictures!) explaining the Naked Girly Machines now in operation. As I felt me blood pressure rising, I suddenly had a thought…

      Why am I the only person who seems to give a damn about the 4th amendment (present company excluded of course)? I mean, you can’t cross the street without bumping into someone who would start screaming at the drop of a hat about their God-given right to own a gun as laid down in the 2nd amendment. So how did we get to a place that there is only one amendment that large numbers of people are willing to loudly defend, but the rest are disposable? Why is it that everyone else in the security line when told to raise their arms just says, “how high”? I don’t get it.

      Thank God someone still cares about the usurpation of power by the President. But when did the country as a whole decide to yawn over our fundamental constitutional rights?

      • john in sacramento says:

        So yesterday I happened to go to the airport to pick up the hubby and as I passed the maze funneling people through security I saw a little sign (complete with pictures!) explaining the Naked Girly Machines now in operation. As I felt me blood pressure rising

        You have no idea how revealing they are

        I’ll try to find a link I saved

  4. tjbs says:

    in all but the narrowest circumstances

    That crack is big enough to drive an M-1 tank through.

    Does that mean no more cool video assassinations and the children are allowed to live, weddings go on and funerals receive the proper respect? Pinch my ass.

  5. Mary says:

    Silly EW – SILLY SILLY ACLU/CCR!!

    Obamaco asked the recently exed-Deans of two top law schools for their ok first, and a current Sup Ct Justice too. Kagan, Koh, Kagan again.

    Just look:
    http://www.politico.com/news/stories/0810/41472.html

    The State Department legal advisor (ex-Yale law dean), Harold Koh, assures us that escalating drone killings are conducted with “great care … to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”

    Obama hasn’t just ruined his own, personal credibility – he’s taken down people like Panetta and Koh with him. And they deserve to go down with him.

      • Mary says:

        I thought with he got little deelyboppers that popped out of his head, so Obama could communicate with him telepathetically?

        • pdaly says:

          bmaz mentions Klatuu, but I was thinking about “Andy” from My Favorite Martians (the children’s animated version of My Favorite Martian)

          To appeal to a younger audience, Uncle Martin is joined by his Martian nephew named Andromeda, nicknamed “Andy”, who only has one antenna and thus lesser powers than Uncle Martin

          update: Upon reading up on Wikipedia, I see that Uncle Martin’s antennas provided invisibility, not communication. My bad.

    • freepatriot says:

      Obama hasn’t just ruined his own, personal credibility – he’s taken down people like Panetta and Koh with him.

      you give Obama too much credit

      panetta lost his credibility years back …

  6. fatster says:

    O/T

    Manning chooses civilian lawyer in WikiLeaks case
    Manning’s top lawyer in WikiLeaks case defended Muslim soldier facing execution for murders

    “The Army says former military attorney David Coombs, of Providence, R.I., will represent Pfc. Bradley Manning . . . ”

    LINK.

  7. Mary says:

    Tony Blair – poor guy, his pre-release sales for his bio are lagging in Britain.

    http://www.telegraph.co.uk/news/newstopics/politics/tony-blair/7971212/Blair-to-avoid-book-protests-with-US-trip.html

    Luckily for him, Obamaco is going to give him a boost with a statemanishy meeting with Obama and the Bill Clinton is going to finish stuffing the turkey by giving Blair, on behalf of 2 million Iraqi refugees, the *Liberty Medal* “a prestigious award given to people who pursue the ‘ideals and values upon which the United States was founded'”

    And the Dems wonder why so many of us don’t give a rats ass which party gets elected any more – the “fear” of “Bushies” is hard to keep rolling when you not only do everything Bush did, but up the ante. Seriously – what would be different if Bush was still in the WH? A medal for Blair, a high profile meeting at the WH for him as well. The main diff is Obama and Clinton keep their shoulders from heaving up and down while they snicker through it all.

    • phred says:

      That is just disgraceful. I can almost (almost!) understand the Nobel committee giving Obama the Peace Prize as an incentive to be peaceful. But what possible excuse could there be to give Blair anything other than a long prison sentence?

      Honestly, I am beyond fed up with the oligarchs. From the end of the article you linked:

      Mr Blair is also set to defend robustly his decision to go to war in Iraq and Afghanistan, and the run-up to the conflicts. He will speak warmly of George W Bush, the former US president.

      [snip]

      Last week, it emerged that he had acquired his ninth property, which will be used by his daughter Kathryn and it was reported yesterday that he was seeking a Caribbean retirement home.

      He is thought to have earned tens of millions of pounds advising banks and wealthy investment funds since leaving office in 2007.

      Emphasis mine.

      Delightful. Waged an illegal war, murdered thousands, displaced millions, yet raking in millions of pounds by giving advice to banks and investment funds during the worst financial collapse of our lifetime. This guy is the poster boy for the Reverse-King-Midas set.

      Not to worry though, no matter how much he fucks up nor how many people suffer from his conduct he still gets nice shiny medals, buys homes for his kids, and plans for a cushy Caribbean retirement.

      No accountability for war criminals any more.

        • phred says:

          Or McNamara ; )

          Alas, I was raised to believe that the Nuremberg Trials meant something. I was also raised to believe the rule of law meant something and that each and every one of us is equal under the law. I believed Orwell’s books depicted a dystopian future that was inherently un-American, that would require us to follow a path that we would not take. I thought the idea of Big Brother watching you everywhere, even in your own bedroom was frightening and preposterous.

          I was wrong.

          • fatster says:

            No you aren’t wrong, phred The struggle seems tougher than ever right now, but that in no way invalidates what you know to be true and just. Keep your eyes on the prize. Hold on!

    • skdadl says:

      Tonstant weader fwowed up.

      Someone might warn some American politicians that admiring guys like Blair makes them look naive and socially insecure.

      • Mary says:

        I’m waiting for the photoshop of Clinton awarding to Blair to go up with the Bush/Tenet medal shot.

      • Mary says:

        Yeah – right now Obamaco is awash in embracing Alan Simpson’s tits, awarding medals to Britain’s twits, and attacking “progressives” who believe in law by fits and snits.

        I hope they’ll understand when some of us call it quits.

          • fatster says:

            Just think on it, Bob. In addition to her legal expertise and ability to make even the most abstruse areas of the law make sense, she rescues kitties and doggies, she cares for horses, she wrestles snakes and she writes verse!

    • fatster says:

      What’s up with all this melodrama, though? Oozing sincerity, too, of course.

      Blair ‘desperately sorry’ for Iraq war deaths: memoirs

      “Former British prime minister Tony Blair said he was “desperately sorry” over the deaths in the Iraq war, in extracts released Tuesday from his memoirs.

      “Blair said he was “sorry for the lives cut short”, but maintained it was right to remove dictator Saddam Hussein from power, in extracts from “A Journey”, his account of his decade in office.

      “He said the aftermath of the 2003 invasion was “terrible” and said he wept over the loss of life.

      “Blair said he still felt a sense of “anguish” for the relatives of those killed in the conflict.”

      And it goes on and on–and this is just a news article.

      LINK.

    • bobschacht says:

      Thanks, fatster. Greenwald, as usual, provides a good read on an important issue. What has happened to our country?

      This only reinforces Jerry Nadler’s point to me at Netroots Nation that in wartime (putative or real) our nation gets stupid about fundamentals (well, that’s not exactly how he put it.) And what grabs me even more about that is that it is not even a real, Congressionally declared War. Yet even with this bastard war, Congress behaves stupidly and fails to fulfill its Constitutionally-mandated responsibilities. It all reinforces to me the importance of ending not only the occupation of Iraq, but the “war” in Afghanistan. But even if that is achieved, how will the “war” be ended, without a declaration from the President or Congress? Are we really, now, trapped in the nightmare of perpetual war?

      Bob in AZ

      • pdaly says:

        Glenn Greenwald, discussing al-Awlaki being in Yemen, brings up the point that Americans abroad retain their American rights and do not, contrary to the mistaken beliefs of many Americans, lose those rights when they leave the US borders.

        What about an American with dual citizenship? I believe that the US does not recognize (but does tolerate) dual citizenship, so even in the case of an American living abroad with dual citizenship, their American citizenship is still recognized. I know the IRS feels that way, and it waits for a tax form submission each year from all US citizens scattered around the globe.

  8. rosalind says:

    OT: alongside EW & Bmaz, the 9th Circuit Hawaii retreat participants have also made note of the judicial confirmation logjam that threatens the entire system of justice:

    But what was previously a politicized practice of holding up nominees to the circuit courts of appeal has “spread like a virus to the district courts,” (Russell) Wheeler said. Bush got 98% of his nominees to the federal trial courts approved at this stage in his administration, Wheeler said.

    The 9th Circuit needs more judges to expeditiously handle appeals, said the circuit’s Chief Judge Alex Kozinski. But it’s at the district court level that he is most concerned, he said, because of mounting caseloads.

    Supreme Court Justice Anthony M. Kennedy, on hand for the 9th Circuit retreat, took note of the confirmation conflicts without assigning guilt to either political faction.

    “It’s important for the public to understand that the excellence of the federal judiciary is at risk,” Kennedy said. “If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”

    • phred says:

      “…cast upon a sea of congressional indifference, the rule of law is imperiled.”

      That applies to a far broader range of problems than just the excellence of the judiciary. Congress appears to be indifferent to everything except the next check slipped into their pocket.

      • rosalind says:

        the Kennedy quote focuses on Congress, but the article as a whole at the link points the finger back at Obama as the chief architect of the logjam.

  9. MadDog says:

    After consulting with my ever-trustworthy and wholly imaginary crystal ball, I offer this:

    Should the plaintiffs surmount the lack of standing argument, they then will likely face our permanent National Security state overseers insisting that their State Secrets Privilege trumps all.

    And should the plaintiffs somehow surmount the State Secrets Privilege roadblock, they’ll then likely face our permanent National Security state overseers arguing that the government is legally authorized by the 9/11 Authorization to Use Military Force to kill anyone anywhere at anytime for any Executive branch-perceived terrorism-related reason.

    And of course, should the US government render al-Awlaki to his maker at anytime during the course of the likely lengthy judicial stall game, our ever national security-submissive courts will then dismiss this case as moot.

    Other than that, the ACLU and CCR have got a great case!

    • skdadl says:

      Is there a single WH correspondent (interesting term) who ever stands up at a press conference to ask either Gibbs or the prezzie hisself what total fresh illogical hell this is? One? Just one? Ever?

      I’m not saying we don’t have illogical people of our own; we do. But this is too perverse to be ignored. Isn’t it?

      • MadDog says:

        The short answer is no, none.

        I view the typical MSM WH correspondent’s own perceived duties as nothing more serious than insider Beltway circle-jerk gossip gotchas, and I suspect their administration counterparts see them exactly the same way.

        On the scale between News and Entertainment, a WH correspondent Prima Donna is all about scoring today’s salacious Drudge headline, a Politico attaboy or 30 seconds of facetime on the nightly news.

        The reporters who will actually report in any real depth on this story are ones who are far removed from the clowncar antics of the WH pressroom.

    • MadDog says:

      I wanted to clarify that despite my cynicism about the likely judicial processes we’ll see on this case, I fully support the ACLU and CCR in their continuing efforts to tilt at these windmills.

      As is the case on many civil liberty and national security issues that need redress, if not for the good folks at the ACLU and CCR, there would be no court challenges to unbridled abuse of US government power and its constitutional illegalities at all.

      Though we’re all dealing with hard financial times, I for one believe that the ACLU and CCR make a difference in the quality of my life.

      Just a suggestion, but if you can, consider a donation to the ACLU here and to the CCR here.

  10. Mary says:

    Here’s a pdf to one of the filings

    http://www.aclu.org/files/assets/alaulaqi_v_obma_pibrief_0.pdf

    I only read far enough to get the status info, and it looks as though, even though they omit it in the case caption (??) they recite in their memo that the father is filing on his own behalf AND as next friend for his son.

    hmmm.

    May try to read through later. It looks like journos who have info about the kill lists now have info about an active conspiracy to murder US citizens abroad – I wonder how that jives with any notions of shield?

  11. freepatriot says:

    it’s been said before

    Know Your Rights, ALL THREE OF THEM

    you have the right not to be killed unless you are killed by a police man

    You have the right to free speech unless you actually try to use it

    You have the right to food money (there’s more)

    joe strummer

    let’s see if America can live up to it

    I ain’t holdin my breath …

  12. Mary says:

    Other toes dipped in the water of state’s secrets – intel services are pushing the meme that the killing of the MI6 codebreaker is going to be “too sensitive” for a real, open trial and may have to be the first murder trial in British history to be conducted all in the dark.

    The intense secrecy surrounding the investigation [of the murder of Gareth Williams] has prompted speculation that any future court case could be the first murder trial in British legal history to be held entirely behind closed doors.

    Lawyers said that powers already available under the criminal procedure rules 2005 could be used by a judge to hold all or part of any future trial in secret for reasons of national security.

    Under a separate procedure the prosecution could even apply for a “Public Interest Immunity certificate” banning sensitive evidence being disclosed even to the defence.

    This kind of stuff is slimey. Way slimey.

    • skdadl says:

      The last report I read in the Guardian noted that Williams had also done work with the NSA:

      It is understood Williams also worked for the US National Security Agency and made regular trips to Washington DC and Fort Meade, near Baltimore.

      Call me slow, but I don’t see how a dead person can put himself in a bag. But they don’t want to call it murder.

      • Mary says:

        Apparently there’s an Obamaco OLC memo on Enhanced Internment Procedures – as long as your intent in murdering someone wasn’t to murder them, but more to, ya know, delicit information from them, it’s not murder.