One year ago today, the ACLU and the Center for Constitutional Rights filed a federal lawsuit challenging the constitutionality of the U.S. government's drone killings of three American citizens in Yemen in 2011. Tomorrow, we will appear in court to oppose the defendants' argument that the court has no role to play in deciding whether the U.S. citizens' constitutional rights were violated.
In the year since we filed our complaint, there have been notable milestones in the fight against the unlawful targeted killing program. An important public debate about the program has gained steam, as have bipartisan calls for the government to release more information about the legal standards on which it relies when it kills people far from any battlefield. Below is a brief survey of some of the key developments; they show important strides forward, although critical challenges remain.
ACLU and CCR File Lawsuit Challenging Targeted Killing of Three U.S. Citizens (July 18, 2012)
Exactly one year ago today, the ACLU and the Center for Constitutional Rights filed our challenge to the government's killings of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. In the complaint, we charge that government officials violated the Constitution when they authorized and directed the strikes that killed these three U.S. citizens outside the context of armed conflict, based on vague legal standards and evidence never presented to any court. Have a look at the video we released at the time of the filing, in which Nasser Al-Aulaqi, one of our clients, remembers Abdulrahman — his 16-year-old grandson whose death the government has never explained.%3Ciframe%20allowfullscreen%3D%22%22%20src%3D%22%2F%2Fwww.youtube.com%2Fembed%2FxSwoRP-Y3a8%3Fautoplay%3D1%26version%3D3%22%20thumb%3D%22files%2Fimages%2Fnatsec%2Fblog-nasser-466x262.png%22%20frameborder%3D%220%22%20height%3D%22262%22%20width%3D%22466%22%3E%3C%2Fiframe%3E
Fighting the CIA's Secrecy Claims on Drones (September 20, 2012)
Last September, we appeared before the D.C. Circuit Court of Appeals to argue that the CIA must release records about its use of drones to conduct targeted killings abroad, including the legal basis for the program and factual information about civilian casualties. Despite a campaign of leaks from senior government officials claiming that the killing program was lawful and effective, the CIA had maintained for nearly two years in court that it could "neither confirm nor deny" that it had any records. We explained why the government needed to end its practice of selectively disclosing information about the program while obstinately refusing to confirm or deny its very existence in court. You can get a good idea of why that refusal is so absurd from this ProPublica feature, which compiles statements from officials discussing the CIA's drone program. Read on to find out how the court ruled.
NYU–Stanford Report Documents U.S. Government's False Narrative on Drone Strikes (September 25, 2012)
Clinics at the law schools of New York University and Stanford University released an important report last September documenting the human and strategic costs of the United States' drone program in Pakistan. Based on in-person interviews, media reports, and other documents, the report concludes that far more civilians have been killed by U.S. drone strikes in Pakistan than the government has officially acknowledged, that civilians suffer ongoing terror and trauma as a result of drone strikes, and that the negative turn of Pakistani public opinion against the U.S. is damaging to U.S. national security interests. Check out the video below to learn more about how the killing program affects ordinary Pakistanis.%3Ciframe%20allowfullscreen%3D%22%22%20src%3D%22%2F%2Fwww.youtube.com%2Fembed%2F6yMOzvmgVhc%3Fautoplay%3D1%26version%3D3%22%20thumb%3D%22files%2Fimages%2Fnatsec%2Fblog-nyustanfordreport-466x262.png%22%20frameborder%3D%220%22%20height%3D%22262%22%20width%3D%22466%22%3E%3C%2Fiframe%3E
Court Dismisses ACLU Transparency Lawsuit on Targeted Killings of U.S. Citizens (January 2, 2013)
Early this year, a federal court in New York dismissed the ACLU's Freedom of Information Act lawsuit challenging the government's refusal to release information about the legal and factual bases for the killings of three U.S. citizens in Yemen in 2011. While the loss was a blow for transparency, the judge's ruling actually highlights the undemocratic and unconstitutional character of the government's targeted killing program:
The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.
The ACLU appealed the decision in April. Our case has been consolidated with a similar one filed by the New York Times.
DOJ "White Paper" Revealed (February 3, 2013)
One month after the judge in our New York FOIA lawsuit ruled that she could not compel the government to release information about the killings of three U.S. citizens, NBC News released a Department of Justice memo explaining the government's legal rationale for the extrajudicial killing of an American citizen the government believes to be affiliated with a terrorist organization. This window into the government's justifications is chilling. The document essentially claims that the government can kill any U.S. citizen it deems to be a threat even if the threat he purportedly poses isn't imminent in the ordinary sense of the word, even if he is not located anywhere near an actual battlefield, and even if the target has never been charged with a crime or informed of the allegations against him. It dismisses the possibility of judicial review, and the limits the paper supposedly sets out are so vague and elastic that they can be easily manipulated. Read more of our analysis here.
Brennan Faces Questions Over Killing Program at Confirmation Hearing (February-March 2013)
The nomination of John Brennan for CIA chief sparked an important nationwide debate about the targeted killing program and the need for increased transparency. After the ACLU called for the Senate to examine Brennan's role in the program during his tenure as President Obama's counterterrorism advisor, senators indeed pressed him at his confirmation hearing to disclose more information about the program, leading to Senator Rand Paul's widely publicized filibuster to hold up his confirmation. While Brennan was ultimately confirmed, the nomination resulted in a bipartisan coalition that emerged within Congress, demanding that President Obama release the legal opinions justifying the government's vast killing program. The Obama administration has provided some of these opinions to members of Congress. It has not released any to the public.
International Criticism Mounts Over Killing Program (March 2013)
Alongside greater domestic pressure on the administration, the international community also grew increasingly outspoken about the human rights implications of the killing program, including harm to civilians and the program's violation of international law. In early March, several members of the European Parliament (EP) hosted a first-ever briefing on the topic with the ACLU's Hina Shamsi and Jamil Dakwar, and in April the EP held an official hearing. In January, the United Nations special rapporteur on counterterrorism and human rights, Ben Emmerson, announced the official launch of an investigation into targeted killings by the United States and other governments. The results of the investigation are expected to be reported to the U.N. General Assembly. In April, the U.N. Human Rights Committee also raised questions about drone strikes and civilian casualties in advance of its review of the United States' report on its compliance with the International Covenant on Civil and Political Rights, which will take place in October.
Victory in Court: CIA Can No Longer Refuse to "Confirm or Deny" on Drones (March 15, 2013)
In an important victory for transparency, in March 2013, a federal appeals court in Washington ruled in the ACLU's favor, and put an end to the CIA's absurd claims that it could "neither confirm or deny" whether it had information about the government's use of drones to carry out targeted killings. The ruling affirms the public's right to understand and evaluate the government's defense of the program with information beyond what the government selectively chose to leak and disclose. The D.C. Circuit Court of Appeals sent the case back to the district court, where the CIA will have to release documents that respond to the ACLU's request or legally justify withholding them.
Human Rights Organizations Appeal to Obama to Rein in Killing Program (April 11, 2013)
A coalition of human and civil rights organizations, including the ACLU, sent a letter to President Obama in April, expressing concerns with the targeted killing program, calling for the disclosure of the legal rationale and criteria guiding the program, and calling for policy change to ensure judicial oversight and compliance with international law. The New York Times called the letter "the most significant critique to date by advocacy groups of what has become the centerpiece of the United States' counterterrorism efforts."
In Senate Testimony, Yemeni Activist Describes Human Costs of Targeted Killing Program (April 24, 2013)
A democracy and human rights activist from Yemen, Farea Al-Muslimi, traveled to Washington this past April to testify before the Senate Judiciary Committee about the human rights costs and consequences of the targeted killing program for Yemeni civilians. In Al-Muslimi's powerful testimony, he spoke fondly of his time as a high school student in the United States, described the deaths of innocent civilians, and called into question allegations that alleged terrorists could not be captured. He also described how the program is instilling fear and anger among Yemenis who would otherwise admire America.%3Ciframe%20allowfullscreen%3D%22%22%20src%3D%22%2F%2Fwww.youtube.com%2Fembed%2FJIb0wMfOFhw%3Fautoplay%3D1%26version%3D3%22%20frameborder%3D%220%22%20height%3D%22315%22%20width%3D%22420%22%3E%3C%2Fiframe%3E
U.S. Admits to Killing of Four Americans (May 22–23)
In May 22, the day before a long-awaited national security address by President Obama, Attorney General Eric Holder sent a letter to Congress admitting publicly—for the first time—that the government has killed four Americans in counterterrorism operations overseas since 2010. The next day, Obama acknowledged the killing of Anwar Al-Aulaqi in his speech. But while the president said he welcomed increased transparency and public debate on targeted killing, his speech left many questions unanswered – about who can be targeted, when, where, and more.%3Ciframe%20allowfullscreen%3D%22%22%20src%3D%22%2F%2Fwww.youtube.com%2Fembed%2FET3f_UG5Pt0%3Fautoplay%3D1%26version%3D3%22%20thumb%3D%22files%2Fimages%2Fnatsec%2Fblog-obama-466x262.png%22%20frameborder%3D%220%22%20height%3D%22262%22%20width%3D%22466%22%3E%3C%2Fiframe%3E
Court Hearing Challenges U.S. Drone Killings of Three Americans (July 19, 2013)
Tomorrow — one year and one day after we filed our lawsuit with the Center for Constitutional Rights challenging the constitutionality of the U.S. government's killing of three U.S. citizens in Yemen in 2011 — we will appear in court to dispute the defendants' claims that the court has no role to play in reviewing the government's actions. The Justice Department has filed briefs seeking to dismiss the case, arguing that "political questions" and national security issues bar judicial review. But as we have argued, the Constitution requires the court to hear the merits of our clients' claims. When the government takes the lives of its own citizens, it must answer for its actions to a court. View Nasser Al-Aulaqi's updated plea for answers:%3Ciframe%20allowfullscreen%3D%22%22%20src%3D%22%2F%2Fwww.youtube.com%2Fembed%2FGQlbnulmnEw%3Fautoplay%3D1%26version%3D3%22%20thumb%3D%22files%2Fimages%2Fnatsec%2Fblog-nasser-466x262.png%22%20frameborder%3D%220%22%20height%3D%22262%22%20width%3D%22466%22%3E%3C%2Fiframe%3E