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Targeted Killings Go to Court

by JOANNE MARINER

This week the ACLU and the Center for Constitutional Rights (CCR) filed a novel and important lawsuit. The suit, Al-Aulaqi v. Obama, seeks to limit the US government’s power to kill American citizens abroad.

The plaintiff in the suit, Nasser al-Aulaqi, is the father of US citizen Anwar al-Aulaqi, a radical Muslim cleric and alleged al Qaeda operative who is in hiding somewhere in Yemen. Based on disclosures by US government officials, numerous media sources have reported that the younger al-Aulaqi is on a “shortlist” of American citizens whom US military forces have been specifically authorized to kill, and that he recently became the first US citizen to be placed on a separate CIA kill list.

“He’s in everybody’s sights,” an anonymous US official told the Washington Post last April.

The US has already carried out several reported airstrikes in Yemen, at least one of which is believed to have targeted al-Aulaqi. (That strike, in late December 2009, reportedly killed 41 Yemeni civilians, mostly women and children. The Yemeni government later apologized to the victims’ families; the US government, which has not formally acknowledged conducting military operations in Yemen, did not.)

US officials claim that al-Aulaqi has assumed an important operational role in al-Qaeda, primarily in recruiting new militants. Yet al-Aulaqi has never been indicted in the US for a terrorist offense. Nor has the evidence against al-Aulaqi ever been made public, let alone been tested by a court.

Indeed, the US government has never publicly described its deliberations about al-Aulaqi’s fate, although one US official, speaking anonymously, told the Washington Post that the government follows “careful procedures” in these types of cases. One of the stated goals of the new lawsuit is to require the US to disclose the criteria that are used in determining whether a citizen can be targeted for death.

The main form of relief that the suit seeks is injunctive–and quite bold. Specifically, it requests the court to “enjoin defendants from intentionally killing U.S. citizen Anwar Al-Aulaqi unless he is found to present a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat.”

A Global Armed Conflict Against Al-Qaeda

The Al-Aulaqi suit faces daunting procedural hurdles, including questions about the father’s standing to bring the case, that may prevent the court from reaching the merits of the plaintiff’s complaint. A number of previous lawsuits challenging US counterterrorism efforts have been dismissed for such reasons long before any resolution of their substantive claims.

But if the court reaches the merits of this case, it will grapple with some crucially important issues–issues with deep ramifications for the country’s post-9/11 counterterrorism policies. Besides the applicability of the constitutional provisions the plaintiff raises, the court will also have to consider whether the US is–in a legal and not simply rhetorical sense–engaged in a global armed conflict with al Qaeda.

The post-9/11 period has seen a problematic expansion of the notion of armed conflict. No longer restricted to traditional wars, the concept has been stretched to cover violent criminal acts such as terrorism. Notably, both the US and Israel have referred to the existence of an armed conflict against terrorist groups to justify the targeted killings of alleged terrorists. The appeal of the claim is obvious: The law of armed conflict has more permissive rules for killing than does human rights law or a state’s domestic law.

In general, human rights law and US law require the government to show that a killing is necessary to protect against an imminent threat to life or physical safety, and that there are no other means, such as capture or non-lethal incapacitation, of preventing that threat to life. The laws of war, in contrast, allow state forces to kill enemy combatants in circumstances in which they do not pose such an urgent threat.

Although the Bush administration broadly claimed that the “war on terror” justified all of its aggressive counterterror measures, it never tried to explain or justify the specific legal rationale behind the CIA’s targeted killing program. The Obama administration, to its credit, has been somewhat more open.

A few months ago, State Department Legal Adviser Harold Koh briefly sketched out the US government’s legal justifications for targeted killings. They were said to be based on its asserted right to self-defense, as well as on the laws of war, on the basis that the US is “in an armed conflict with Al Qaeda, as well as the Taliban and associated forces.”

“Anywhere Else in the World”

The plaintiff’s brief in Al-Aulaqi only very briefly addresses this question, stating that “the United States is not engaged in armed conflict with Yemen, or within it.” It rejects the notion of a global war with al Qaeda, asserting that just because the United States is engaged in an armed conflict in Afghanistan “does not mean that the law of war applies in Yemen, or anywhere else in the world that a suspected terrorist may be found.”

The Bush administration’s entire counterterrorism architecture — which the Obama administration reformed, to some extent, but did not reject — rests on the idea that the United States is at war with al Qaeda. Renditions to Egypt, drone strikes in Yemen, and the indefinite detention of hundreds of men at Guantanamo all share a common conceptual foundation.

It is long past time for this Global War on Terror–now reframed as a worldwide armed conflict with “al Qaeda, the Taliban and associated forces”–to get its day in court.

JOANNE MARINER is a human rights lawyer based in New York and Paris.

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JOANNE MARINER is a human rights lawyer living in New York and Paris.

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