Civil liberties lawyers are urging a federal trial judge in Washington to keep alive a lawsuit that alleges the government unlawfully killed three U.S. citizens in drone strikes in Yemen.
The U.S. Justice Department said the suit, filed in July in U.S. District Court for the District of Columbia, raises political questions that are outside the authority of the judiciary to answer. Federal trial courts, according to DOJ, have no role to play in second-guessing the national security and foreign policy decisions of the executive branch.
The American Civil Liberties Union on February 5, amid an intense national debate on the legality of the use of lethal force against American citizens abroad, called the government stance in the case "exceedingly dangerous" and "wrong."
"Under our constitutional system, the right to life is not entrusted to the Executive alone," Hina Shamsi, director of the ACLU’s national security project, said in the court papers filed Tuesday night in Washington. The ACLU and the Center for Constitutional Rights represent the personal representatives of the estates of the U.S. citizens, including Anwar al-Awlaki, in the case.
The killing of Awlaki, a Muslim cleric whom the U.S. government officially designated a "global terrorist," occurred in 2011 outside of any battlefield, the ACLU lawyers said. Targeting Awlaki, the plaintiffs said in their papers, was unlawful because he wasn’t "engaged in activities that presented a concrete, specific, and imminent threat of death or serious physical injury."
The application of the so-called "political question doctrine," in which the judiciary refrains from wading into the political realm, should be narrowly construed, the ACLU said. The challengers said the claims in the suit, brought under the Fourth and Fifth Amendments, "could not be more squarely committed to the judiciary."
The challengers note in their papers that the U.S. Supreme Court last year rejected the government’s insistence that a trial judge be forbidden to rule on whether an American citizen, born in Jerusalem, can have "Israel" designated as his place of birth on his passport. (DOJ said the resolution of the case would violate separation of powers—specifically, the authority of the executive branch to conduct foreign affairs. The U.S. doesn’t recognize any entity as having sovereignty over Jerusalem.)
That the claims in the Awlaki suit arise in a national security context, the ACLU lawyers said, "does not change these core constitutional questions, nor remove them from the expertise of the judicial sphere."
In December, DOJ lawyers said in the government’s court papers seeking the dismissal of the suit that the challengers’ complaint asks "this court to take the extraordinary step of substituting its own judgment for that of the executive."
The DOJ team, including Paul Werner of the Civil Division, said the claims "raise quintessential political questions" that the judiciary should not entertain. The government also argued that the defendants, including Leon Panetta and David Petraeus, are entitled to qualified immunity because the suit has failed to "allege the violation of any clearly established constitutional right."
The ACLU’s court filing in response to DOJ comes as top administrative officials publicly grapple with complaints about the secrecy and lawfulness of the targeted killing program.
NBC on Monday night disclosed a confidential DOJ "white paper" that offered, in the administration’s eyes, the legal justification for the use of lethal force against American citizens suspected of having ties to terrorism.
DOJ and other senior officials have spoken publicly about the legal rationale, but the document provided the most detailed picture yet. DOJ has refused to produce internal Office of Legal Counsel memos concerning the legality of using lethal force against American citizens abroad. A case pending in the U.S. Court of Appeals for the Second Circuit seeks access to those memos.
The undated 16-page DOJ position paper said it’s a "lawful act of national defense" to target an American citizen who poses an "imminent threat of violent attack to the United States." The paper also said "there exists no appropriate judicial forum to evaluate these constitutional considerations."
At a February 5 press conference in Washington, reporters pressed Attorney General Eric Holder Jr. about the DOJ document.
Holder insisted that he and other top Obama administration officials—including former Defense Department general counsel Jeh Johnson and John Brennan, the president’s chief counterterrorism advisor—have given the public sufficient information about the legal underpinning of lethal strikes against Americans.
"One of things I want to make sure that everybody understands is that our primary concern is to keep the American people safe but to do so in a way that’s consistent with our laws and consistent with our values," Holder told reporters.
Congressional authorization, Holder said, allows the government to "operate" against al Qaeda and associated forces not just in Pakistan and Afghanistan but in other parts of the world. Holder insisted lethal force is used "when there’s an imminent threat or when capture is not feasible."
Holder didn’t identify Yemen, and he didn’t use the word "drone." In the government’s earlier court papers in the Awlaki case, DOJ lawyers included a footnote that said they neither confirms nor deny any of the allegations presented in the complaint.
Holder said the government is "confident" that the strikes are being done in a way that’s consistent with federal and international law." The attorney general, however, declined to distinguish between an "imminent" threat and one that is "ongoing." He said "so many of these things are fact based."
Shamsi, in a statement in response to the disclosure of the DOJ paper, called it "a profoundly disturbing document."
"It summarizes in cold legal terms a stunning overreach of executive authority—the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement before or after the fact," Shamsi said.
Confronted about the paper during a briefing with reporters, White House spokesman Jay Carney on Tuesday said drone strikes are necessary to stop "ongoing actual threats" and to thwart future attacks.
"These strikes are legal, they are ethical and they are wise," Carney said. "The U.S. government takes great care in deciding to pursue an al Qaeda terrorist, to ensure precision and to avoid loss of innocent life."
Carney noted, among other things, a speech Holder gave last year at Northwestern University Law School in which he purported to provide the legal framework for lethal force against U.S. citizens overseas.
"The Attorney General made clear that in taking such a strike, the government must take into account all relevant constitutional considerations, but that under generations-old legal principles and Supreme Court decisions, U.S. citizenship alone does not make a leader of an enemy force immune from being targeted," Carney said.
DOJ lawyers have until March 7 to bolster their argument that the targeted killing suit should be dismissed. The case is pending before U.S. District Judge Rosemary Collyer.
Mike Scarcella can be reached at email@example.com.