Civil liberties groups challenge constitutionality of secret U.S. program to target terror suspects for killing

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By Spencer S. Hsu
Washington Post Staff Writer
Monday, August 30, 2010; 7:13 PM

The American Civil Liberties Union and the Center for Constitutional Rights filed a federal lawsuit Monday challenging the U.S. government's authority to target and kill U.S. citizens outside of war zones when they are suspected of involvement in terrorism.

The civil liberties groups sued in U.S. District Court in Washington after being retained by the father of Anwar al-Aulaqi, a radical U.S.-born cleric who is in hiding in Yemen.

The CIA placed Aulaqi on its list of suspected terrorists it is authorized to kill earlier this year; the cleric had been on a separate list of individuals targeted by the Joint Special Operations Command.

"The United States cannot simply execute people, including its own citizens, anywhere in the world based on its own say-so," Vince Warren, executive director of the Center for Constitutional Rights, said in a written statement. "That the government adds people to kill lists after a bureaucratic process and leaves them on the lists for months at a time flies in the face of the Constitution and international law."

The groups said that the Constitution prohibits targeted killings absent a trial and due process, except as a last resort to prevent specific and imminent threats of death or serious injury.

As part of the suit, the groups have sought a preliminary injunction to halt the U.S. practice of targeting American citizens. Separately, they asked the court to order the government to disclose the standards under which it places individuals, including U.S. citizens, on target lists, noting that it remains unknown how many Americans or other people are on such lists.

"Whatever people think about the merits of the program, we think at a minimum Americans have a right to know under what circumstances the government has the right to impose the death penalty without charge or trial," said Jameel Jaffer, director of the ACLU's National Security Project.

The public response to the Obama administration's extrajudicial targeting of terrorism suspects has so far been relatively muted, unlike the controversy generated by the Bush administration's efforts to detain enemy combatants without charges or trials.

But Jaffer said that both policies illustrate the ways in which the fight against al-Qaeda - which the government has said has no boundaries - threatens to undermine human rights.

A spokesman for U.S. Attorney General Eric H. Holder Jr. said the Obama administration "is using every legal measure available to defeat al-Qaeda, and we will continue to do so as long as its forces pose a threat to this nation."

The Justice Department declined to comment on the specific allegations, but spokesman Matt Miller said Congress has authorized the use of "all necessary and appropriate force" against al-Qaeda and its allies.

"The U.S. is careful to ensure that all its operations used to prosecute the armed conflict against those forces, including lethal operations, comply with all applicable laws, including the laws of war," Miller said. "The government has the authority under domestic and international law, as well as the responsibility to its citizens, to use force to defend itself in a manner consistent with those laws."

U.S. authorities have said that Aulaqi played a direct operational role in the attempted bombing of a Northwest airliner en route to Detroit on Christmas Day. Intelligence officials think he is also increasingly involved in the operations of al-Qaeda's affiliate in Yemen.

The Treasury Department named Aulaqi a "global terrorist" on July 13, a designation that made it illegal for lawyers to assist the cleric without obtaining a license. The ACLU and the Center for Constitutional Rights filed suit earlier this month to challenge the requirement that they obtain a license.

Within days, the Treasury Department's Office of Foreign Assets Control issued a statement saying its policy was to broadly allow pro-bono legal services, and granted the groups specific licences to do so in Aulaqi's case.

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