ACLU Sues Obama Administration Over Targeted Killings of U.S. Citizens

by Julian Ku

I’m a little late (in blogospheric time) to comment on the ACLU/CCR lawsuit today challenging the legality of the Obama Administration’s policy on targeted killings of U.S. citizens. (Hat Tip WSJ Law Blog) Here is the complaint. It’s is not surprising. As I noted before, the ACLU has been making noises about this lawsuit for several months. And, at least with respect to the targeted killings of U.S. citizens outside an armed conflict, they have a pretty decent argument.

To their credit, the ACLU/CCR is making the narrowest possible legal challenge to targeted killings.  They are challenging “the executive’s asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict.”  The challenge mainly rests on U.S. constitutional due process grounds and focuses only on the targeted killing of a U.S. citizen in Yemen, thereby sidestepping any confusion over the status of the war in Afghanistan or Pakistan.  The complaint also seems to concede that there might be circumstances where such a killing might be constitutional due to emergency circumstances or if the sufficient process was provided.  There is also a challenge based on international law and the Fourth Amendment, but I think the Due Process challenge is the strongest claim.

I am not an expert on declaratory injunctions, but I think that is going to be a problem, for reasons I can’t go into here in detail. I assume there will be a political question defense raised here, and I think declaratory injunctions are uniquely vulnerable to this type of defense. Second, although wisely styled as a rights-based challenge, there are lots of reasons to think the Obama Administration will point out it has broad authority from Congress to engage in this kind of targeted killing.  As a matter of domestic law, expect the Obama Administration to stand on pretty firm ground.

The main conceptual issue, though, is the problem of whether there really is an armed conflict outside of Afghanistan/Pakistan for the purposes of the war on terrorism.  If there isn’t, than presumably Congress’ authorization doesn’t extend to targeted killings to places like Yemen.  And the lack of an armed conflict would weaken the international legal foundation for targeted killings.

This has the potential to be a blockbuster lawsuit, forcing the centerpiece of the Obama Administration’s war on terrorism strategy to go under the legal microscope.  It could be a fascinating case, although I expect there to be innumerable procedural hurdles and delays before we get to any interesting parts of this case.

http://opiniojuris.org/2010/08/31/aclu-sues-obama-administration-over-targeted-killings-of-us-citizens/

4 Responses

  1. Isn’t there a gigantic standing issue with this suit?

  2. Response…
    For a view that the self-defense paradigm is different than both the mere law enforcement and the mere law of war paradigms and a view that targeted killings in self-defense can be permissible under international law (which, if so, can enhance presidential power, since the President has the constitutionally-based authority, and duty, faithfully to execute the law, which law includes treaty-based and customary international law), see http://ssrn.com/abstract=1520717

    Jordan

  3. Response…

  4. Isn’t there a gigantic standing issue with this suit?”

    The plaintiff is the target’s father, purporting to bring the suit on his own behalf and on behalf of the target as the target’s “next friend”. The father alleges that he can act for the target “because his son is in hiding under threat of death and cannot access counsel or the courts … without … exposing himself to possible attack by Defendants”.

    I assume that the defendants’ first motion will be to compel the target to submit to a deposition, and their second motion will be to dismiss the case when he doesn’t appear. Plaintiffs don’t get to play, “Heads I win, tails you lose”; if he wants to sue, he has to submit to ordinary court procedure. The deposition would be essential, as the issues would include authority and jurisdiction.

    I also assume that the defendants would happily stipulate that they won’t kill him without a trial if he agrees to surrender for a trial. That should rebut allegation in support of “next friend” authority.

    I doubt that the courts will have much trouble dismissing this as a publicity stunt rather than a lawsuit. A particularly sympathetic district judge might let it go on for a while. But ultimately, it will get dismissed without ever getting close to the merits.

    PS: Can my empty comment be deleted? It appears that my smartphone isn’t smart enough to permit me to type in the comment box …

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.