Targeted Killing: "A Unique and Extraordinary Case"

“A unique and extraordinary case” is how a federal judge described our lawsuit, with the Center for Constitutional Rights, challenging the Obama administration’s targeted killing policy.

We brought the case on behalf of Nasser Al-Aulaqi, whose U.S. citizen son, Anwar Al-Aulaqi, has been put on a secret hit list by the government. In a decision issued today, the judge emphasized that the case raises critically important questions, including whether “the Executive [can] order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization.” The court nevertheless dismissed the case on the basis of “standing” — ruling that our client does not have the right to represent the interests of his son — and on the grounds that the case raises “political questions” that are not subject to judicial review. He did not rule on the merits of the case.

The ramifications of the court’s decision are breathtaking.

A central premise of the case is that in our constitutional system of checks and balances, courts have a critical oversight role to play when the executive branch claims the authority — as both the Bush and Obama administrations have done — to kill people far from any battlefield, based on secret criteria. In rejecting that premise, the court has effectively granted the president the unreviewable authority to order the targeted killing of any American, anywhere, based on a unilateral determination that the person is a threat. No president should have that power. But the court’s decision today would grant that authority in all future cases, to all future presidents. (And with America’s example to follow, will other countries be far behind?)

While the president’s claims of unilateral authority to conduct targeted killing are extraordinary, the relief we sought is not. We did not ask the court to rule that targeted killings are per se illegal, nor did we ask the judge to second-guess battlefield decisions. We acknowledged that there are exceptional circumstances — as a last resort, when a threat is imminent and there is no reasonable alternative — in which the government can legally use lethal force without prior judicial process. But because the government has turned these exceptional circumstances into policy with its targeted killing program, we asked the court to order 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.

We also asked that the courts determine — after the fact — whether the government is actually complying with that standard. Otherwise, the government’s targeted killing program amounts to the imposition of a death sentence against a mere suspect, without charge, trial or any other independent check against mistakes. Unfortunately, after today’s decision, that is what we’re left with. It is hard to imagine a decision more damaging to American citizens’ liberty and the rule of law.