The CIA and the military are carrying out an illegal “targeted killing” program in which people far from any battlefield are determined to be enemies of the state and killed without charge or trial. The executive branch has, in effect, claimed the unchecked authority to put the names of citizens and others on “kill lists” on the basis of secret determinations, based on secret evidence, that individuals meet a secret definition of the enemy.
The targeted killing program operates with virtually no oversight outside the executive branch, and essential details about the program remain secret, including what criteria the government uses to put people on CIA and military kill lists, or how much evidence is required before it does so.
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Outside of armed conflict zones, the Constitution and international law prohibit the use of lethal force unless it is used as a last resort against a concrete, specific, and imminent threat of grave harm. Even in the context of an armed conflict against an armed group, the government may use lethal force only against individuals who are directly participating in hostilities against the United States. Regardless of the context, whenever the government uses lethal force, it must take all possible steps to avoid harming civilian bystanders. But these are not the standards that the executive branch is using.
The United States continues to carry out illegal targeted killings in Pakistan, Yemen, Somalia, and elsewhere. The government must be held to account when it carries out such killings in violation of the Constitution and international law.
Al-Aulaqi v. Panetta: In July 2012, the ACLU and the Center for Constitutional Rights (CCR) filed a lawsuit challenging the government’s targeted killing of three U.S. citizens in two drone strikes, both in Yemen, far from any armed conflict zone. The suit charges that the U.S. government’s killings of U.S. citizens Anwar Al-Aulaqi, Samir Khan, and Al-Aulaqi’s 16-year-old son, Abdulrahman Al-Aulaqi, in 2011 violated the Constitution’s fundamental guarantee against the deprivation of life without due process of law. The defendants moved to dismiss the lawsuit, arguing that the courts have no role to play in determining whether the killings of the three Americans were lawful. In July 2013, a federal district court in Washington, D.C., heard oral argument on the defendants’ motion, and we await the court’s decision.
Targeted Killing FOIA: In February 2012, the ACLU filed a Freedom of Information Act lawsuit seeking information about the targeted killings of three U.S. citizens in Yemen in September and October 2011: Anwar Al-Aulaqi; Samir Khan, and Al-Aulaqi’s 16-year-old son, Abdulrahman Al-Aulaqi. The lawsuit seeks disclosure of the legal memoranda written by the Department of Justice’s Office of Legal Counsel that provided justifications for the targeted killing of Anwar Al-Aulaqi, as well as records describing the factual basis for the killings of all three Americans.
The government initially refused to even confirm or deny whether it had records related to the ACLU’s request — and whether it was responsible for the killings — despite numerous public statements by U.S. officials about the program and its legal basis. Months later, it acknowledged its responsibility for the three killings, but argued to the courts that it could not identify the number of documents in its possession or describe them without endangering national security.
In October 2013, the Court of Appeals for the Second Circuit heard the ACLU’s appeal of a January 2013 district court decision ruling that the government’s refusal to disclose information was lawful. A decision is pending.
Drones FOIA: In June 2010, the ACLU filed a FOIA lawsuit demanding that the government disclose basic information about its use of drones to conduct targeted killings. The lawsuit seeks disclosure of the legal basis, scope, and limits on the targeted killing program; information pertaining to the training, supervision, oversight, or discipline of drone operators and others involved in the decision to execute a targeted killing using a drone; and data about the number of people killed in drone strikes. In response, the CIA refused to even confirm or deny whether it had records related to the government’s drone program. A lower court upheld the CIA’s invocation of secrecy, but in March 2013, a federal appeals court reversed the ruling. The appeals court held that the CIA could no longer deny its interest in the government’s targeted killing program, given the numerous public statements made by CIA and administration officials. The D.C. Circuit Court of Appeals remanded the case to the district court, where the ACLU has asked the court to order the CIA to release the documents or legally justify withholding them. The CIA responded that it could not identify the number of documents in its possession or describe them without endangering national security.
Al-Majalah Civilian Deaths FOIA: In April 2012, the ACLU and CCR submitted a FOIA request seeking information about a December 2009 U.S. missile strike on a community in the al-Majalah region of the Abyan province of Yemen. The attack, which was the Obama administration’s first known missile strike in Yemen, apparently targeted alleged “militants” but killed dozens of civilians, including at least 21 children. The U.S. government has yet to release basic information about the strike.
Al-Aulaqi v. Obama [DISMISSED]: In response to press reports that the United States had placed U.S. citizen Anwar Al-Aulaqi on a secret kill list, in August 2010, the ACLU and CCR filed a lawsuit challenging the government’s asserted authority to carry out targeted killings of U.S. citizens located far from any armed conflict zone. The lawsuit argued that the executive branch’s claimed authority to impose an extrajudicial death sentence on U.S. citizens and others found far from any actual battlefield violates both the Constitution and international law. It also argued that the American people are entitled to know the standards being used for targeted killing decisions. A federal court dismissed the case in December 2010.