Legal activist groups filed an extraordinary lawsuit yesterday to prevent the U.S. military and CIA from undertaking the "targeted killing" of persons suspected of posing a terrorist threat to the U.S. The filers are asking the court to block not merely the targeted killing of U.S. citizens overseas—the subject of much press coverage of the suit—but of all foreign terrorists, as well.
According to the complaint, filed in federal district court in Washington, D.C. by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR), "outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury." The ACLU and CCR brought the suit on behalf of Nasser al-Aulaqi, whose American son in Yemen, Anwar al-Awlaki, reportedly has been targeted by the United States for his connections to the 9/11 hijackers, the Fort Hood shooter, and others.
The complaint focuses great attention on the fact that al-Awlaki is in Yemen: "The United States is not at war with Yemen, or within it." This is a remarkably incorrect statement. Of course the United States has not declared war on the nation of Yemen, but the Authorization for the Use of Military Force passed by Congress in response to the attacks of 9/11 specifically authorize the president "to use all necessary and appropriate force" against all "persons" and "organizations" (and not just nations) whom "he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." In other words, if the president determines that al-Awlaki or anyone else either committed those acts himself or is part of the organization that did, then the president is authorized to use military force against him. And that is in addition to the executive branch's independent constitutional authority to use military force in defense of the nation— whether in Yemen or anywhere else.
The government will almost certainly move for this case to be dismissed, on the grounds that the plaintiffs cannot force the disclosure of state secrets necessary for the prosecution of the case, and on the grounds that military decisions present purely "political questions" unfit for judicial intervention.
But regardless of whether this case is ever decided on the substantive merits of the laws of war and military conflict, the sheer scope of the ACLU's and CCR's arguments must not go without comment. Media coverage has centered on the fact that the complaint focuses primarily on the government's authority to target U.S. citizens. (See here, here, and here.) But in fact, the complaint goes much further: In the closing paragraphs, where the ACLU and CCR state their specific "prayer for relief," they ask the court to declare that "outside of armed conflict" international law prohibits the government from carrying out the targeted killing of all "individuals"—not just U.S. citizens specifically—unless one poses a concrete, imminent threat and no other means could reasonably be used to neutralize the threat. (The ACLU's and CCR's claims under constitutional law, by contrast, are limited to protecting U.S. citizens specifically.)
In short, the ACLU and CCR are asking a federal court to interpose itself into the military's and CIA's process of targeting foreign terrorists, and to declare that the United States cannot take targeted lethal action against terrorists who do not pose an "imminent" lethal threat to us.