WASHINGTON - A
federal court today acknowledged the serious issues raised by a lawsuit
challenging the Obama administration's targeted killing policy, but
dismissed the case on the grounds that the plaintiff did not have legal
standing to challenge the targeting of his son, and that the case raised
"political questions" not subject to court review. The Center for
Constitutional Rights (CCR) and the American Civil Liberties Union filed
the lawsuit in August, charging that the administration's asserted
authority to execute U.S. citizens outside combat zones who do not pose
an imminent threat violates the U.S. Constitution and international law.
The judge did not rule on the merits of the case.
Despite granting the government's
motion to dismiss the case, Judge John Bates of the U.S. District Court
for the District of Columbia called the case "unique and extraordinary,"
said it presented "[s]tark, and perplexing, questions" and found that
the merits "present fundamental questions of separation of powers
involving the proper role of the courts in our constitutional
structure." Ultimately, however, he dismissed the case on procedural
grounds and found that "the serious issues regarding the merits of the
alleged authorization of the targeted killing of a U.S. citizen overseas
must await another day..."
"If the court's ruling is correct,
the government has unreviewable authority to carry out the targeted
killing of any American, anywhere, whom the president deems to be a
threat to the nation," said Jameel Jaffer, Deputy Legal Director of the
ACLU. "It would be difficult to conceive of a proposition more
inconsistent with the Constitution or more dangerous to American
liberty. It's worth remembering that the power that the court invests in
the president today will be available not just in this case but in
future cases, and not just to the current president but to every future
president. It is a profound mistake to allow this unparalleled power to
be exercised free from the checks and balances that apply in every other
context. We continue to believe that the government's power to use
lethal force against American citizens should be subject to meaningful
oversight by the courts."
The ACLU and CCR 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. The lawsuit asked the court to rule that, outside the
context of armed conflict, the government can carry out the targeted
killing of an American citizen only as a last resort to address an
imminent threat to life or physical safety. The lawsuit also asked the
court to order the government to disclose the legal standard it uses to
place U.S. citizens on government kill lists.
Judge Bates did not decide these
issues, however, because he found that the plaintiff did not have the
right to assert his son's interests in court, and "that there are
circumstances in which the Executive's unilateral decision to kill a
U.S. citizen overseas is ‘constitutionally committed to the political
branches' and judicially unreviewable." Regarding the latter "political
question" issue, the judge acknowledged "the somewhat unsettling nature
of its conclusion."
"The court refused to hear a claim on
behalf of a U.S. citizen under threat of death by his own government
that his personal constitutional rights have been violated - exactly
what the court itself acknowledges it appears no court has ever done,"
said CCR attorney Pardiss Kebriaei. "The court's holding on the
political question doctrine is indeed 'unsettling.'"
Judge Bates asked but did not answer
the troubling question, "How is it that judicial approval is required
when the United States decides to target a U.S. citizen overseas for
electronic surveillance, but that, according to defendants, judicial
scrutiny is prohibited when the United States decides to target a U.S.
citizen overseas for death?"
The lawsuit was filed against CIA
Director Leon Panetta, Defense Secretary Robert Gates and President
Barack Obama in the U.S. District Court for the District of Columbia.
Attorneys on the case are Jaffer, Ben Wizner, Jonathan Manes and
Jennifer Turner of the ACLU; Kebriaei, Maria LaHood and Bill Quigley of
CCR; and Arthur B. Spitzer of the ACLU of the Nation's Capital.
Co-counsel in Yemen is Mohammed Allawo of the Allawo Law Firm and the
National Organization for Defending Human Rights (HOOD).
In response to a related case
challenging regulations that prohibited the ACLU and CCR from bringing a
lawsuit on behalf of Nasser al-Aulaqi without first obtaining a license
from the Treasury Department's Office of Foreign Assets Control (OFAC),
the Treasury today issued significant amendments to its regulations.
Among other changes, the new regulations mean that uncompensated
attorneys will no longer be required to apply for a license in order to
represent individuals before any domestic courts or administrative
Today's decision and other documents related to the targeted killing case are available online at:
Documents related to the OFAC case are available online at: www.aclu.org/ofac