ACLU and CCR Argue Killings Must Be Subject to Judicial Review
July 18, 2013
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WASHINGTON – The American Civil Liberties Union and the Center for Constitutional Rights will be in federal court Friday for oral argument in their lawsuit challenging the constitutionality of the U.S. government’s killing of three U.S. citizens in Yemen in 2011: Anwar Al-Aulaqi and Samir Khan in September and Al-Aulaqi’s 16-year-old son Abdulrahman the following month. The groups argue that the killings violated the Fifth Amendment’s guarantee of due process, and that courts have a crucial role to play in judging the legality of the government’s actions.
“The Constitution does not allow government officials to kill Americans based on vague and shifting legal criteria and evidence never presented to a court,” said ACLU National Security Project Director Hina Shamsi, who will argue in court Friday. “The government has argued that the court should step aside when the executive branch conducts extrajudicial killings of American citizens abroad, but the Supreme Court has ruled that the judiciary has an essential role to play in protecting civil liberties even in the context of actual military conflict. The Constitution’s protections are never more crucial than when the government seeks to deprive people of their lives.”
The lawsuit was filed one year ago today on behalf of Nasser Al-Aulaqi, the father and grandfather of Anwar and Abdulrahman Al-Aulaqi, and Sarah Khan, the mother of Samir Khan.
“The government’s position is unprecedented and extraordinary. It claims the most consequential power a government can exercise against its own citizens – the power to take life without due process – and asserts that the courts should have no role at all in reviewing its actions, even after the fact, even when the killings are off any battlefield,” said CCR Senior Staff Attorney Pardiss Kebriaei, who will also argue in court Friday. “The court should exercise its constitutionally mandated role and review our clients’ fundamental claims. It is for the court to determine the legality of the government’s actions, not for the government simply to assert it.”
The Justice Department has filed briefs seeking to dismiss the case, arguing that “political questions” and national security issues bar judicial review.
In 2010, following press reports that the U.S. government had put Anwar Al-Aulaqi on a “kill list,” the ACLU and CCR filed a lawsuit representing Nasser Al-Aulaqi, challenging the government’s authority to do so. The court dismissed that suit on the grounds that Nasser Al-Aulaqi did not have legal standing to challenge the targeting of his son, and that the request for before-the-fact judicial review raised non-justiciable “political questions.” The current lawsuit raises different legal questions because it was filed after the killings had taken place.