The courts have a crucial role to play in determining the lawfulness of U.S. drone killings of three American citizens in Yemen in 2011, the ACLU and the Center for Constitutional Rights argued in a brief filed last night in a lawsuit challenging the killings (you can read the brief here).
Our lawsuit charges that U.S. citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman Al-Aulaqi were killed in violation of the Constitution's fundamental guarantee against the deprivation of life without due process of law. In December, the government filed a motion to dismiss the case, arguing, in essence, that the courts should not be involved in determining the lawfulness of the targeted killing of U.S. citizens. As we say in the brief filed yesterday:
This case concerns the most fundamental right the Constitution guarantees to citizens: the right not to be deprived of life without due process of law. Defendants respond with various arguments for dismissal of the case, but they all boil down to a single assertion: The Executive has the unilateral authority to carry out the targeted killing of Americans it deems terrorism suspects—even if those suspects do not present any truly imminent threat, even if they are located far away from any recognized battlefield, and even if they have never been convicted (or even charged) with a crime.
The filing of the brief came just one day after the release by NBC News of a Justice Department white paper, which summarizes a secret Department of Justice legal memo purportedly justifying the addition of Anwar Al-Aulaqi to the government's secret kill lists. (We're separately seeking that legal memo in a Freedom of Information Act lawsuit).
The unchecked authority the government claims is dangerous, and the potential for abuse is clear. Under our Constitution and its system of checks and balances, the executive branch cannot decide alone that it can strip a citizen of the right to life. As the Supreme Court ruled in Hamdi v. Rumsfeld, "[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."
The targeted killing program is conducted in near-total secrecy. In our lawsuit, the defendants argue, in essence, that the government can kill citizens without presenting evidence to any court before or after a killing is carried out and without even acknowledging to any court that their claimed authority to kill has been exercised.
But as we say in response, "Defendants' argument that the Judiciary should turn a blind eye to the Executive's extrajudicial killing of American citizens misunderstands both the individual rights guaranteed by the Constitution and the courts' constitutional duty to safeguard those rights from encroachment."
For more on 16 year-old Abdulrahman Al-Aulaqi's killing, watch this video of his grandfather, one of our clients.