David Petreus and Leon Panetta Sued in Connection with Overseas Drone Attacks
The proliferation of unmanned drone aircraft continues to generate novel litigation. In July of this year I wrote about a citizen group’s Freedom of Information Act lawsuit. The group sought a court order requiring the United States government to disclose information about companies and entities it had authorized to operate domestic drones. The parties reached a settlement, following which the citizen’s group published the fact that those obtaining Certificates of Authorization to fly drones domestically included the Customs and Border Protection, the military, multiple police departments, various small cities and, for some reason, Cornell, the University of Colorado and Eastern Gateway Community College. I also read today a rumor that TMZ had requested authorization to operate drones.
In the same month the FOIA suit was filed, the survivors of three victims of two targeted drone attacks filed suit, in federal court in Washington, D.C., against Secretary of Defense Leon Panetta, former CIA Director David Petreus, Special Operations Commander William McRaven and Joint Special Operations Commander Joseph Votel. The operative fact of the case was that, although both drone attacks took place in Yemen, each of the three victims was an American citizen living in that country.
1. Anwar Al-Auluqi-who was born in New Mexico, and educated at Colorado State University, San Diego State University (masters degree), and George Washington University. He left the U.S. in 2003, moving to the UK and then Yemen. He was allegedly placed on the “kill lists” of the CIA and Department of Defense, as a result of the government’s belief that he had “cast his lot” with terrorist groups and had “played a key role in setting the strategic direction” for Al-Qaeda. But, the suit noted, he had never been indicted for a crime.
2. Abdulrahman Al-Aulaqi-who, at the time of his death, was Anwar’s 16 year old son.
3. Samir Khan- who became a U.S. citizen in 1998, living in New York and North Carolina, and moving to Yemen in 2009.
The suit suggests that, of the three victims, only Anwar was targeted or on a “kill list”. Khan appears to have been accidentally killed in the missile strike targeting Anwar. Abdulrahman was killed, along with approximately six others, in a separate drone strike on a Yemeni restaurant.
Attempts on Anwar’s life were allegedly made prior to the missile strike. As a result of this, his father filed a 2010 suit, seeking to enjoin the President, the CIA and Department of Defense from carrying out the targeted killing of his son unless the executive branch concluded that he presented a concrete, specific and imminent threat to life. The court dismissed the Complaint, holding that Al-Aulaqi’s father lacked standing to assert the claim, and that some of the issues raised by him were political questions which were not the proper subjects of court review. The drone attacks against the three took place several months later, following which the second suit was filed.
The introduction to the suit claims that, since 2009, the U.S. has carried out “targeted killings” of suspected terrorists throughout the middle east theaters and the Philippines. These attacks, according to the plaintiffs, have led to the deaths of thousands of people, including hundreds of civilian bystanders.
Plaintiffs claim that the three victims were each American citizens, entitled to the protections of the U.S. Constitution. They claim that the missile strikes was committed unlawfully because, among other reasons, (1) the U.S. was not engaged in an armed conflict with or within Yemen (2) none of the victims were “directly participating in hostilities within the meaning of the law of war” (3) all three were American citizens and (4) none were tried or convicted prior to the attacks taking place.
The Complaint quoted a Newsweek interview with a former CIA official, describing the kill list as “basically a hit list” and noting that approximately 30 persons are on it at any given time. According to the official, “the Predator drone is the weapon of choice, but it could also be someone putting a bullet in your head”. The suit also claims that government officials “have made clear” that the United States’ authority to carry out the killings extends to American citizens, regardless of whether the victim has been tried or convicted of the offense alleged.
The families allege the following causes of action against the Defendants:
1. That the killings denied the victims due process of law under the Fifth Amendment to the United States Constitution.
2. That the killings constituted an unreasonable seizure, in violation of the Fourth Amendment.
3. That the killing of Anwar Al-Aulaqi (the suspected terrorist) constituted an unreasonable act of attainder because the United States designated him for death with the protections of a trial.
A complete copy of the Complaint can be viewed and downloaded here.
The Defendants have not yet answered. The implications of the suit are enormous; and specifically the issue of whether the executive branch has the right to authorize the assassination of U.S. citizens, in countries which it is not at war with, and without the protections afforded all citizens by the Constitution. The initial question for the court will be whether it has the power to decide the question, or whether the issue is a non-justiciable political question. It will be fascinating to see what happens.