The American Civil Liberties Union and the Center on Constitutional rights have filed a lawsuit against Treasury Secretary Timothy Geithner and the Treasury Department Office of Foreign Asset Control over their having blocked the ACLU's attempt to challenge the government's authority to engage in the targeted killing of American citizens suspected of terrorism. The lawsuit is being brought on behalf of Nasser al-Awlaki, the father of Anwar al-Awlaki, the extremist cleric who has been linked to al-Qaeda in the Arabian Peninsula and several terror plots targeting the United States. Nasser al-Awlaki maintains that his son is innocent.
Although there have been rumors that the U.S. government would be indicting Anwar al-Awlaki, that hasn't happened yet. However, in July, Awlaki was designated a global terrorist, meaning that anyone wishing to render legal services on his behalf had to acquire permission from the OFAC. The lawsuit challenges the constitutionality of the OFAC's requirement and was filed in part because the OFAC has yet to respond to their request. The ACLU points out that there's something strange about the OFAC delaying granting a license to defend someone whom the government claims is such an imminent threat they should be killed at first opportunity.
"We don't think the we should have to ask the government's permission before suing it for violations of constitutional rights," said Vince Warren, executive director of the CCR.
The larger issue is less one of Anwar al-Awlaki's guilt and innocence but rather the scope of the government's authority to target U.S. citizens for killing without due process. The ACLU and the CCR want to challenge that authority, but they can't even do that without the OFAC's permission.
As for the ultimate question of whether targeting al-Awlaki is fair game, supporters of the administration's authority to do so could argue that, immanence aside, al-Awlaki has identified himself as a member of an enemy force through his very public exhortations for Muslims to kill Westerners, and therefore the U.S. would be justified in killing him under international laws governing self-defense, regardless of whether or not he happens to be a citizen. According to American University law professor Kenneth Anderson's April testimony before the House, however, establishing whether or not al-Awlaki is a "combatant" isn't necessarily even an issue:
The legal justification of self-defense is separately available as a basis to attack. The standard in [the al-Awlaki] case is not “combatancy,” but the threat posed, immanence, and other traditional factors – including the US's long embrace of “active self-defense,” meaning that a threat can be assessed on the basis of a pattern of activity already established in the past, without having to wait until a target is on the verge of acting.
The ACLU and the CCR say they want to see these issues cleared up in the courts, rather than determined arbitrarily by the executive branch.
"Trust is not good enough; it's certainly not good enough when we're talking about imposing the death penalty without charge or trial," said Anthony Romero, executive director of the ACLU.
