Frequently Asked Questions - Targeted Killing and the OFAC Lawsuit

Document Date: August 3, 2010

Why are the ACLU and CCR bringing this lawsuit against OFAC?
The ACLU and CCR are bringing this case to challenge the legality of a scheme that requires attorneys to seek a license from the government before providing legal counsel to people who have been designated as terrorists. This licensing scheme is preventing us from challenging the claimed authority of the executive branch to target people for killing – including American citizens – far from any battlefield, without due process.

The American government should not have the power to prevent lawyers from representing individuals who have been designated by the government as terrorists, and it should certainly not have the power to prevent them from representing Americans who have been targeted for killing without due process. The U.S. is unconstitutionally claiming the authority to impose a death sentence on an American citizen while simultaneously denying him the right to a lawyer.

Why do you want to challenge targeted killing?
The notion that the U.S. can execute its own citizens located far from any battlefield, without due process, is repugnant to our democracy.

Allowing the use of warlike tactics far from any battlefield – using drones or other means – turns the whole world into a war zone and sets a dangerous example for other countries which might feel justified in doing the same. If the U.S. claims it can kill suspected enemies of the U.S. anywhere – using unmanned drones or otherwise – then other countries will regard killing their enemies within our borders as justified. We wouldn’t be okay with the prospect of other countries hunting their suspected enemies within U.S. borders.

The targeted killing of people far from any battlefield, which is aimed at terrorism suspects who have not been proven to be guilty, also risks the deaths of innocent people. Over the last decade, we have seen the U.S. government wrongly imprison hundreds of men as terrorists based on weak, wrong or unreliable evidence, only to eventually free them. The consequence of such mistakes is far greater when the end result is death; there is no recourse for killing the wrong person.

Why is this a civil liberties issue for the ACLU?
It is the ACLU’s job to hold the government accountable to the Constitution and international law and to defend individuals’ rights against government abuse of power.

A program of targeted killing of U.S. citizens far from any battlefield, without charge or trial, violates the constitutional guarantee of due process. It also violates international law, which says that lethal force may be used outside armed conflict zones only as a last resort to prevent imminent threats, when non-lethal means are not available. Putting people on a “kill list” for months at a time is clearly not limited to last resort or imminent threats.

How does the targeted killing program operate?
There is very little information available to the public about the U.S. targeting of people far from any battlefield, so we don’t know when, where and against whom targeted killing can be authorized. According to news reports, names are added to the “kill list,” sometimes for months at a time, after a secret internal process. In effect, U.S. citizens and others are placed on “kill lists” on the basis of a secret determination, based on secret evidence, that a person meets a secret definition of the enemy.

What are the standards for being placed on the targeted killing list and who is on it?
No one knows what the standards are for being placed on the list because the government has not disclosed them. We do know that people on the list are suspects who have not been found guilty of any crimes.

The secrecy and lack of standards for sentencing people to death, resulting in a startling lack of oversight and safeguards, is one of our prime concerns with this program. We don’t know how many people are on the government’s kill lists – we don’t even know how many Americans are on the lists. And equally troubling, we don’t know on what basis people are added to the list. How much evidence does the government have before it adds a name to the kill list? Who reviews that evidence? If the government’s program is limited to imminent threats, how does the government define imminence? All of these things are secret, and this is unacceptable. The government should not be imposing the death penalty on the basis of standards that are secret.

Who maintains the targeted killing list?
According to government officials, the C.I.A. and the Pentagon maintain lists of terrorists linked to Al Qaeda and its affiliates who are approved for capture or killing, but the inclusion of Americans on those lists must be approved by the National Security Council.

How many Americans have been targeted for death?
It’s impossible to know because the list is secret. In response to a question about the procedures used to order lethal strikes against U.S. citizens abroad, White House Terrorism advisor John Brennan suggested that “dozens of U.S. persons who are in different parts of the world” were “very concerning.” It is unclear how many of these citizens are on the kill list.

Why should being a U.S. citizen be a shield? Once you decide to fight against America, don’t you give up that protection?
There are very narrow circumstances under which the government is authorized to use lethal force against a person without due process. If a U.S. citizen takes up arms against the U.S. on a battlefield, or if he poses an imminent threat off the battlefield, citizenship will not protect him. But the government appears to be claiming the authority to use lethal force against U.S. citizens who are merely suspected of terrorist crimes, even if they are civilians far from any battlefield.

Aren’t you challenging a military strategy? Shouldn’t the military be able to do what’s necessary to keep us safe?
War time authority must be limited to active conflict zones, but the U.S. is reportedly targeting people located far from any battlefield. The entire world is not a battlefield, and we don’t want to replace the laws of peace with the laws of war everywhere and anywhere the government believes a suspect may be located. If we give the executive branch the authority to define a global battlefield and to describe any terrorism suspect as a combatant, then we are effectively allowing government officials to make life-or-death decisions without the time-tested procedural protections of the Constitution.

How the U.S. responds to the threat of terrorism will in large measure determine the rules that govern every nation’s conduct in similar circumstances. If the U.S. claims it can kill suspected enemies of the U.S. anywhere – using unmanned drones or otherwise – then other countries will regard killing their enemies within our borders as justified.

Why should someone be protected just because he isn’t in an armed-conflict zone? Would this be ok if he was hiding out in Iraq or Afghanistan?
Under very narrow circumstances, the government can use lethal force without due process, including against people engaged in armed conflict on the battlefield and people who pose an imminent threat off the battlefield. But unless those criteria are met, the government cannot lawfully execute someone without charge or trial.

Why should we care that the U.S. government is trying to kill bad people who are far away?
Targeting people who are suspected of terrorism for execution, far from any war zone, turns the whole world into a battlefield. If the U.S. starts sending drones after its suspected enemies all over the world, there’s nothing to stop other countries from doing the same. Americans certainly don’t want other countries to start sending drones after their own enemies who might be located within U.S. borders.

Our proposed legal challenge is not about the guilt or innocence of individual suspects; it’s about defending our Constitution. The president simply does not have the authority under our Constitution to create a program that gives him the secret, unchecked authority to designate citizens for death. If we allow the president to violate some individuals’ constitutional rights unopposed, then everyone’s constitutional rights are at risk.

Does al-Aulaqi know you plan to file a lawsuit on his behalf?
We have never communicated with Anwar Al-Aulaqi. Our only contact has been with his father. Our planned lawsuit is about the principle of giving the executive branch unilateral authority to impose an extrajudicial death sentence on American citizens.

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