Courts hear DOJ Motion to Dismiss Case of Abdulrahman Al-Awlaki

U.S. drone strikes have killed four American citizens to date. The families of three of the victims are bringing a lawsuit against those responsible for the targeted killings, seeking accountability from the U.S. government. On September 30, 2011, a U.S. drone strike killed five people, including U.S. citizens Anwar al-Awlaki and Samir Khan. On October 14, 2011, another strike murdered Al-Awlaki’s 16-year-old son Abdulrahman. The Center for Constitutional Rights (CCR) and the ACLU are representing plaintiffs Nasser Al-Awlaki, Anwar’s father and Abdulrahman’s grandfather, and Sarah Khan, mother of Samir Khan.

Codepink delegates met with Nasser Al-Awlaki in Yemen in June. In an interview with the delegates, Nasser expressed, “I’m not looking for compensation or anything else. I am looking for accountability. I want the American system of law to tell me at least why the American government killed my grandson.”

Today, the Codepink DC staff helped fill the packed courtroom to hear the oral argument on the defendants’ motion to dismiss. It is imperative that the unconstitutionality of the U.S. government killing its citizens without due process (a violation of our 5th amendment rights) be addressed, but furthermore we cannot stand for extrajudicial killings with impunity, whether the victim is a citizen or noncitizen.

The court opened with the defense explaining its motion to dismiss the case. The Department of Justice is representing former CIA Director David Petraeus, former Secretary of Defense Leon Panetta, Commander of Special Operations Command William McCraven, and Commander of Joint Special Operations Command (JSOC) Joseph Votel. The defense argued that this was a delicate matter of national security and was “outside the court’s confidence,” essentially arguing that the President’s kill lists are untouchable by the judicial branch of government. Judge Collyer did not seem pleased with the argument, asking where that logic ends and where the limits are for executive authority. The defense received a lesson from Judge Collyer in how checks and balances work among the three branches of government. She said, “The best thing about the US is that we are a country of law.” When the defense argued that the executive branch in this case is checked by Congress, Judge Collyer corrected him: “Congress cannot interpret law; that is what the courts are for.”

When pressed by Judge Collyer, the defense eventually implied that 16-year-old Abdulrahman Al-Awlaki was not their intended target, and that this was a tragic accident. Both the defense and the plaintiff agree that as a US citizen, Abdulrahman has 4th and 5th amendment rights. The difference is that the defense argues that AUMF (Authorization for Use of Military Force) against terrorists applies, making Abdulrahman collateral damage in a legitimate strike against terrorist targets. However, the CCR and ACLU argued that AUMF does not apply. This is not Afghanistan; we are not at war with Yemen, and this was outside the context of armed conflict. The defense argued that it is not up to the courts to judge imminent terrorist threats– a dangerous road for us to go down when it comes to executive authority in extrajudicial killings. This essentially strips someone of all rights if the executive branch deems that person an imminent threat (with no definition of the term “imminent,” of course).

Ultimately, we feel hopeful that the motion to dismiss will be denied, but for the wrong reasons. We do not feel sufficiently convinced that the courts care about Abdulrahman as an individual whose life was taken at the hands of the US government, but that the primary concern is the overreach of the executive authority. It appears that as long as the defense can explain what the limits are and where their argument of executive authority ends, and can explain how the killing of 16-year-old Abdulrahman fits within those limits, that the courts could be satisfied. But we, Americans with a conscience, will not be.

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