Judge Throws Out Challenge to Extrajudicial Killings of Americans

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Common Dreams

Judge Throws Out Challenge to Extrajudicial Killings of Americans

"This decision is a true travesty of justice for our constitutional democracy, and for all victims of the U.S. government’s unlawful killings."

16-year-old Abdulrahman Al-Aulaki, who the Obama administration has admitted to killing in a drone strike.

A US federal judge on Friday dismissed a lawsuit challenging the Obama administration's killing of three Americans in drone strokes, a decision slammed as "a true travesty of justice for our constitutional democracy."

The case was brought by the ACLU and the Center for Constitutional Rights (CCR) on behalf of family members of the victims killed in 2011 in Yemen: Anwar Al-Aulaqi, his 16-year-old son Abdulrahman, and Samir Khan.

The Obama administration admitted last year that it had killed the three, though the older Al-Aulaki, described as a senior AQAP leader and "intimately involved in detailed planning and putting in place plots against U.S. persons," was the only of the three that was "specifically targeted."

The rights groups had charged that Anwar Al-Aulaqi was put on the government's "kill list," and put there "without due process and without any effort to capture, arrest and try him."  Khan was traveling in the same vehicle and was killed the attack that targeted Anwar Al-Aulaki. Abdulrahman Al-Aulaki was killed in a separate drone strike that targeted another individual weeks later.

In her ruling delivered Friday, U.S. District Court Judge Rosemary Collyer dismissed the challenge to the constitutionality of the killings.

The officials named as defendants in the suit, including then-Defense Secretary Leon Panetta, "cannot be held personally responsible in monetary damages for conducting war."

Though siding with the defendants, Collyer writes in her opinion: "The powers granted to the Executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a U.S. citizen of his life without due process and without any judicial review."

Collyer states that the victims' Fourth Amendment rights were not violated because they were not "seized," they were killed, because "[u]nmanned drones are functionally incapable of 'seizing' a person; they are designed to kill, not capture."

The Fifth Amendment violation does not apply to the younger Al-Aulaki or Khan, as they were not deliberately targeted, she writes, explaining that it was "negligence" that they were harmed as bystanders. "Mere negligence does not give rise to a constitutional deprivation," she states in her opinion.

For Anwar Al-Aulaki's due process rights' violations, Collyer writes that "the Court finds no available remedy under U.S. law for this claim."

"In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to question, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Anwar Al- Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief," the opinion states.

The Bivens case, as Politico's Josh Gerstein explains, "refer[s] to a line of cases discussing when courts should allow damage lawsuits against government officials."

"Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into 'the heart of executive and military planning and deliberation,'" Collyer writes, "as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States."

"Further, allowing Plaintiffs to bring a Bivens action against Defendants would hinder their ability in the future to act decisively and without hesitation in defense of U.S. interests," her opinion continues.

The ACLU and CCR issued statements denouncing the ruling.

"Judge Collyer effectively convicted Anwar Al-Aulaqi posthumously based on the government’s own say-so, and found that the constitutional rights of 16-year-old Abdulrahman Al-Aulaqi and Samir Khan weren’t violated because the government didn’t target them," stated Maria LaHood, CCR Senior Attorney. "It seems there’s no remedy if the government intended to kill you, and no remedy if it didn’t. This decision is a true travesty of justice for our constitutional democracy, and for all victims of the U.S. government’s unlawful killings."

Added Hina Shamsi, ACLU National Security Project Director and one of the attorneys who argued the case, "The court's view that it cannot provide a remedy for extrajudicial killings when the government claims to be at war, even far from any battlefield, is profoundly at odds with the Constitution. It is precisely when individual liberties are under such grave threat that we need the courts to act to defend them."

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