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New challenge to drone killings

Rebuffed in one lawsuit attempting to stop the Obama Administration’s use of unmanned drones to kill terrorism suspects overseas, two civil rights groups on Wednesday started a new case, this time seeking to hold top government officials to blame legally for killing three U.S. citizens in attacks from the air in Yemen.  Since the challengers’ first loss in court more than two years ago, the Administration has publicly acknowledged the policy of “targeted killings,” even while insisting that they are legal.  That is what the new lawsuit is seeking to test anew, with a claim for money damages for the three deaths.

The lawsuit in Al-Aulaqi, et al., v. Panetta, et al., differs from the earlier case — filed by one of those involved in the new case — because the prior claim sought to protect a specific “target” from being killed, while the new lawsuit follows his death some nine months later by a drone.  It also seeks damages for the killing of his son, and of a third citizen.  The lawsuit was filed in U.S. District Court in Washington and can be read here.  It does not yet have a docket number.   The cases are similar, though, in that each relies upon an argument that the use of the drones for “targeted killing” is illegal.   To award damages, a federal court would have to be persuaded on that point, and it is almost a certainty that the Administration will attempt to stop the case before it got to that point.

On December 7, 2010, U.S. District Judge John D. Bates in Washington ordered the dismissal of a lawsuit filed by Nasser Al-Aulaqi, a Yemeni national, in an attempt to protect the life of his son, Anwar Al-Aulaqi.   The son, who holds U.S. and Yemeni citizenship, had been designated as a “global terrorist” by the U.S. Treasury in July 2010, based on claims that he was supporting acts of terrorism by the Al-Qaeda network.   At the time the father sued in August 2010, the son was believed to be hiding in Yemen, although he had been actively pursued by U.S. authorities.   The father contended that his son had been put on an official “kill list” by the Administration, and the lawsuit aimed at stopping the government from using a drone to kill him.

Judge Bates concluded that, while the lawsuit raised a host of major constitutional questions, it was beyond the authority of a federal court to decide, partly on the rationale that the father did not have a legal right to sue and that, in any event, issues over the legality of the drone program were the kind of “political question” that the Constitution leaves to the President and Congress, not the courts, to decide.   Al-Aulaqi’s father did not pursue an appeal after that ruling.

The following September 30, missiles fired from an unmanned drone hit a vehicle in which Al-Aulaqi was riding, killing him and three other people — including another U.S. citizen, Samir Khan.  They were in the Yemeni province of al-Jawf, about 90 miles outside the Yemeni capital of Sana’a.  The day of that incident, the Pentagon acknowledged Al-Aulaqi’s death and attributed it to a U.S. airstrike, commenting that he had been “high on the military-intelligence list of terrorist targets.”  The next day, Defense Secretary Leon Panetta also acknowledged the killing, as did President Obama in a television appearance three weeks later.   At that time, the “targeted killing” program had not been officially acknowledged.

Less than a month after the drone strike in al-Jawf province, on October 14, 2011, according to the lawsuit filed Wednesday, another drone some 200 miles away killed at least seven people at an open-air restaurant near the town of Azzan in the Yemeni province of Shabwa.  Among those killed, according to the document, was Al-Aulaqi’s son, Abdulrahman, a U.S. citizen who was 16 years old.  His death apparently has been acknowledged by government officials only in anonymous statements to the media.

On Wednesday, the American Civil Liberties Union and the Center for Constitutional Rights joined in filing the lawsuit claiming that all three of those deaths were illegal.  It argued that the deaths violated the Fifth Amendment guarantee of due process, the Fourth Amendment ban on “unreasonable seizures,” and the Constitution’s ban on “a bill of attainder” — that is, a form of official punishment without the protection of a trial in court.  It asked for an unspecified amount of money damages, and unspecified “other relief” within a court’s power to award.

Unlike the earlier lawsuit, this one is not aimed at President Obama, presumably because the occupant of that office is immune to money damages for official actions.  It is aimed at Defense Secretary Panetta, Central Intelligence Agency Director David H. Petraeus, and two other officials claimed to be directly involved in running the drone program: William H. McRaven, head of the U.S. Special Operations Command at MacDill air base in Florida, and Joseph Votel, who commands the Joint Special Operations Command at Fort Bragg, N.C.

While the lawsuit seeks a sweeping judicial condemnation of the drone policy, it specifically seeks to have a court rule that Panetta, Petraeus, and the other two officials “authorized and directed” the killing of the three citizens specifically, that at the time of the killings themselves none of the three presented “a concrete, specific, and imminent threat to life,” and that there were other means short of killing them to deal with any such threat.   None of the three at the time, the lawsuit asserted, was directly taking part in “hostilities within the meaning of the law of war.”

The document claimed that there was a Justice Department legal memo, issued sometime in or about June 2010, that sought to justify the legality of Al-Aulaqi’s killing.   The government has never conceded that there is such a report, and no part of it has been officially disclosed, although news accounts have claimed to know some of what is in it.  The specific author or authors of such a memo are not public knowledge at this point.  The lawsuit, quoting one such news story, said that any attempt to justify the “targeted killing” program would contradict an Executive Order banning assassinations, a federal law against murder, protections in the Bill of Rights, and various limitations imposed by the international law of war.

The lawsuit has one paragraph describing the prior lawsuit against the drone program, but makes no argument that it had any bearing on the new case.

Recommended Citation: Lyle Denniston, New challenge to drone killings, SCOTUSblog (Jul. 18, 2012, 3:43 PM),