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President Does Not Have Unreviewable Authority To Execute Americans Without Charge Or Trial, Say CCR and ACLU
October 8, 2010, New York – The Center For Constitutional Rights (CCR) and the American Civil Liberties Union today filed a brief in federal court responding to the Obama administration's claims that no court should have any role in establishing or enforcing legal limitations on the executive's authority to use lethal force against U.S. citizens who the executive has unilaterally determined to pose a threat to the nation. The groups' brief came in their lawsuit challenging the government's claimed authority to carry out targeted killings of U.S. citizens outside the context of armed conflict who do not pose an imminent threat.
The ACLU and CCR filed the lawsuit in the U.S. District Court for the District of Columbia on August 30, and the government filed its reply brief on September 25. Today's filing by the groups is in response to the government's brief.
"If the government's arguments were accepted, the current administration and every future administration would have unreviewable authority to carry out targeted killings of Americans deemed to be enemies of the state," said Jameel Jaffer, Deputy Legal Director of the ACLU. "While that power would be limited to contexts of armed conflict, the government has argued that the armed conflict against al Qaeda extends everywhere, indefinitely. This is an extraordinary and unprecedented claim, and one that we urge the courts to reject unequivocally. The courts have a crucial role to play in ensuring that the government's counterterrorism policies are consistent with the Constitution."
The groups responded specifically to the government's claim that the executive's targeted killing authority is a "political question" that should not be subject to judicial review and to its claim that litigation of the case would require the disclosure of state secrets.
"While the administration has publicly declared global war powers to target and kill U.S. citizens and others wherever they may be, when it comes time to defend and explain its breathtaking claims in court, the administration dodges the issue and raises the specter of national security to persuade the court that it should not – indeed, cannot – inquire further, and to trust the executive," said CCR attorney Pardiss Kebriaei. "The court should reject the notion that it has no role in determining the constitutional rights of a U.S. citizen and in defining the constitutional parameters of the president's asserted power."
The ACLU and CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, U.S. citizen Anwar Al-Aulaqi, whom the CIA and Defense Department have targeted for death. The lawsuit asks a court to rule that using lethal force far from any battlefield and without judicial process is illegal in all but the narrowest circumstances and to prohibit the government from carrying out targeted killings except in compliance with these standards. It also asks the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.
The lawsuit was filed against the CIA, Defense Department and the president in the U.S. District Court for the District of Columbia. Attorneys on the case are Jaffer, Ben Wizner, Jonathan Manes and Jennifer Turner of the ACLU; Kebriaei, Maria LaHood and Bill Quigley of CCR; and Arthur B. Spitzer of the ACLU of the Nation's Capital. Co-counsel in Yemen is Mohammed Allawo of the Allawo Law Firm and the National Organization for Defending Human Rights (HOOD).
For more information on the case, including fact sheets and legal papers, visit: www.ccrjustice.org/targetedkillings and www.aclu.org/targetedkillings.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.