Holder’s Legacy: The Constitutional Implications of Al-Aulaqi v. Panetta

Anwar Al-Aulaqi at Dar al Hijrah Mosque on Oct. 4 2001, in Falls Church, VA.

Tracy Woodward/The Washington Post/Getty Images

In September 2014, after nearly six years in the position, Eric Holder resigned as Attorney General. Popular media celebrated Holder’s record on civil and voting rights. However, the American Civil Liberties Union (ACLU) criticized his record on national security. In particular, the ACLU focused on his leadership in the Justice Department approval of the CIA-led extrajudicial assassinations [1] of US citizens abroad who were deemed a threat to the United States. [2]

Anwar Al-Aulaqi (also spelled Al-Awlaki) and his son, Abdulrahman, represent two of these assassinations. Both were killed in 2011, in two separate drone strikes in Yemen.  The ACLU, along with the Center for Constitutional Rights (CCR) and Nasser al-Aulaqi (Anwar’s father and Abdulrahman’s grandfather), filed a suit against former CIA director and current defense secretary Leon Panetta. In April of this year, the case was dismissed by the US District Court for the District of Columbia. [3]

Because the plaintiffs decided not to appeal the case, it has faded from public discourse in recent months. However, it is important to understand the long-ranging Constitutional implications of this court ruling, particularly in light of debates surrounding Holder’s legacy as attorney general. 

The constitutional rights-based framework of this article risks sacrificing a more inclusive, transnational understanding of the horrific effects of drone warfare on non-US citizens in the countries most impacted by it (including, but not limited to, Yemen, Pakistan, Afghanistan, and Somalia [4]). Anwar and Abdulrahman Al-Aulaqi represent just two out of thousands of civilian casualties—because they are US citizens, their cases were much more widely publicized in the US than others. It is crucially important to become familiar with this case, because it implies that the rights to due process of law and the right to a trial by jury are subject to reinterpretation during a time of war. But before moving on, I want to acknowledge that this case exists within a web of larger crackdowns on dissent in the post-9/11 era.

Legal analysts have argued that the question of whether the US government can legally assassinate a US citizen in another country raises questions that “reach to the core of constitutional rights to life and liberty.” [5] In Al-Aulaqi v. Panetta, the ACLU and CCR argued that the assassinations violated the Fourth Amendment prohibition on unreasonable seizures, the Fifth Amendment right to due process, the ban on singling out an individual or group for punishment without trial, and international law. [6]  The plaintiffs acknowledged that assassination without due process is legally allowed as a last resort to “avert a concrete, specific, and imminent threat of death or physical injury,” and only “against individuals who are directly participating in hostilities against the United States.” [7] However, they argued that senior CIA and military leaders who authorized and directed the killings violated several standards, particularly the imperative to “take all possible steps to avoid harming civilian bystanders.” [8]

Ultimately, Al-Aulaqi v. Panetta was dismissed on the grounds that the court could not assess whether the assassination was constitutional. [9] This decision invoked the military and state secrets’ privilege, which has the power to dismiss cases “in exceptional circumstances” in the interest of national security. This court opinion justifies the assassination of Anwar on the grounds that he was considered a terrorist leader and argues that Abdulrahman was killed accidentally by a drone strike targeting an Egyptian man named Ibraham Al-Banna. [10]

Anwar was killed in a “personality strike,” which indicates that the US was specifically targeting “an individual whose identity is known.” [11] A “signature strike,” on the other hand, describes a strike in which “the US conducts targeting without knowing of the individuals targeted. This is a controversial practice because it profiles people based on “behavior or affiliations.” [12]

There is considerable conflict surrounding the justification for the drone strike that killed Abdulrahman. The Obama administration reserves the right to target “military-age” Muslim men (21 years or older), and after Abdulrahman was killed, Western newspapers mistakenly reported that he was 21, not 16. [13] Other reports define the assassination as “collateral,” or accidental. Former White House press secretary Robert Gibbs infamously responded to questions about Abdulrahman’s assassination by linking it to Anwar’s affiliations: 

I’m not going to get into Anwar al-Awlaki’s son. I know that Anwar al-Awlaki renounced his citizenship . . . I would suggest that you should have a far more responsible father. If they’re truly concerned about the well-being of their children, I don’t think becoming an al-Qaeda jihadist terrorist is the best way to go about doing your business. [14]

Gibbs draws alarming links between citizenship, family, terrorism, and assassination—and opens up the possibility that Abdulrahman was killed as a personality strike. In the article “Inside America’s Dirty Wars,” Jeremy Scahill lays bare these contradictions:

A former senior official in the Obama administration told me that after Abdulrahman’s killing, the president was “surprised and upset and wanted an explanation.” . . .  Once it became clear that the teenager had been killed, he added, military and intelligence officials asserted, “It was a mistake, a bad mistake.” However, John Brennan, at the time President Obama’s senior adviser on counterterrorism and homeland security, “suspected that the kid had been killed intentionally and ordered a review. I don’t know what happened with the review.”[15]

How did Holder navigate these contradictions and justify the assassinations? By denying that there were contradictions at all. In a letter that he sent to Patrick Leahy, chairman of the Senate Judiciary Committee, Holder writes, “The decision to target Anwar al-Aulaqi was lawful, it was considered, and it was just.” He repeatedly invokes the “laws of war,” which seem to supersede constitutional rights in this assassination. Specifically, he argues that lethal force should only be used if a suspected terrorist cannot be captured. Despite the conflicting information surrounding Abdulrahman’s assassination, Holder maintains that he was killed accidentally—that he was, is, collateral. 

What does this mean—the justifications, and the fact that Al-Aulaqi v. Panetta was dismissed on the grounds that the courts cannot rule on the limits of the government’s claimed authority?[16] Jameel Jaffer, ACLU Deputy Legal Director and Director of the ACLU Center for Democracy, expressed grave concern that the justice department has instituted “vague” and “elastic” definitions of “imminent threat” and “infeasible” capture—the terms that justified Anwar’s assassination.[17] Jaffer holds that through the Al-Aulaqi v. Panetta decision: “the government has the authority to carry out targeted killings of US citizens without presenting evidence to a judge before the fact or after . . . Without saying so explicitly, the government claims the authority to kill American terrorism suspects in secret.”

As Al-Aulaqi v. Panetta demonstrates, during a time of war, constitutional protections are considerably less secure, and the rights guaranteed to citizens do not necessarily hold across geographic borders. In the post-Holder era, will we see more and more people labeled “dangerous” and extrajudicially assassinated? While Holder has received accolades for his support for civil rights, we have to consider who is legally enfolded under his definition of “civilian,” and who—by virtue of religion, skin color, citizenship status, or geographic location—is not.

Endnotes

1  The use of the term “assassination” is intentional here, reflecting concerns about the questionable legality of these deaths by drone strike. In his address to Northwestern University School of Law, Attorney General Eric Holder said the following about the term: “Some have called such operations ‘assassinations.’ They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings. Here, for the reasons I have given, the US government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.”

2  http://www.democracynow.org/2014/9/26/eric_holders_complex_legacy_voting_rights

3  “Al-Aulaqi v. Panetta.” Center for Constitutional Rights, n.p., n.d. Web. 15 May 2014. <http://ccrjustice.org/targetedkillings>

4  The report Living Under Drones offers in-depth analysis of the effects of drone warfare specifically in Pakistan.

5  Epstein, Michael. “The Curious Case of Anwar Al-Aulaqi: Is Targeting a Terrorist for Execution by Drone Strike a Due Process Violation when the Terrorist is a United States Citizen?” Michigan State Journal of International Law 19.3(2011): 723-744. Print. (p.744).

6  “Al-Aulaqi v. Panetta: Lawsuit Challenging Targeted Killings.” American Civil Liberties Union, n.p., n.d. Web. 10 May 2014. <https://www.aclu.org/national-security/al-aulaqi-v-panetta> Other legal analysis argues that the Al-Aulaqi assassinations erode the Treason Clause as well.

7  “Al-Aulaqi v. Panetta: Lawsuit Challenging Targeted Killings.”

8  “Al-Aulaqi v. Panetta: Lawsuit Challenging Targeted Killings.”

9  “Al-Aulaqi v. Panetta: Lawsuit Challenging Targeted Killings.”

10  A claim that has been contested by journalists like Jeremy Scahill (see Dirty Wars).

11  Williams, Brian Glyn. “Inside the Murky World of ‘Signature Strikes’ and the Killing of Americans with Drones.” The Huffington Post, n.p., 31 May 2013. Web. 15 May 2014. http://www.huffingtonpost.com/brian-glyn-williams/nside-the-murky-world-of-_b_3367780.html

12  “The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions.” New York/Washington, DC: Columbia Law School Human Rights Clinic & Center for Civilians in Conflict, 2012. Print. (p.8).

13  Finn, Tom & Noah Browning. “An American Teenager in Yemen: Paying for the Sins of His Father?” Time, n.p., 27 October 2011. Web. 10 May 2014. <http://content.time.com/time/world/article/0,8599,2097899,00.html>

14  “Robert Gibbs Blames Al Awlaki 16 Year Old Son’s Death by Drone on his Having a Terrorist Father.” Just Foreign Policy, n.p., 26 October 2012. YouTube. Web. 14 April 2014.

15  Scahill, Jeremy. “Inside America’s Dirty Wars: How Three US Citizens Were Killed by Their Own Government in the Space of One Month in 2011.” The Nation. 13 May 2013. Print. 13-20. (p.20).

16  Jaffer, Jameel. “The Justice Department’s White Paper on Targeted Killing.” American Civil Liberties Union, n.p., 04 February 2013. Web. 10 May 2014. <https://www.aclu.org/blog/national-security/justice-departments-white-paper-targeted-killing>

17  His concerns come from a Department of Justice white paper made available to the public, available here (http://www.lawfareblog.com/wp-content/uploads/2013/02/020413_DOJ_White_Paper.pdf), which offers further analysis of the Al-Aulaqi assassinations.