Politics and Public Opinion, Law and the Constitution

Why is the ACLU suing Panetta, Petraeus over Awlaki killing — but not President Obama?

Image credit: Brigadier Lance Mans, Deputy Director, NATO Special Operations Coordination Centre, Wikimedia Commons

Image credit: Brigadier Lance Mans, Deputy Director, NATO Special Operations Coordination Centre, Wikimedia Commons

This afternoon, the ACLU and the left-wing Center for Constitutional Rights (CCR) are back in court with a wrongful death suit against the U.S. officials involved in the targeted killing of the American-born al Qaeda leader Anwar al-Awlaki, as well as Awlaki’s son and American-born al-Qaeda terrorist trainer and propagandist Samir Khan. The New York Times reports:

Relatives of three American citizens killed in drone strikes in Yemen last year filed a wrongful-death lawsuit against four senior national security officials on Wednesday. The suit, in the Federal District Court here, opened a new chapter in the legal wrangling over the Obama administration’s use of drones in pursuit of terrorism suspects away from traditional “hot” battlefields like Afghanistan….

Accused in the suit of authorizing and directing the strikes are Leon E. Panetta, the secretary of defense; David H. Petraeus, the director of the Central Intelligence Agency; and two senior commanders of the military’s Special Operations forces, Adm. William H. McRaven of the Navy and Lt. Gen. Joseph L. Votel of the Army.

“The killings violated fundamental rights afforded to all U.S. citizens, including the right not to be deprived of life without due process of law,” the complaint says.

In its announcement of the suit, CCR declared:

Our suit seeks accountability for those killed. It seeks some modicum of justice for Abdulrahman, the boy whose family could not give a proper burial because he was blown to pieces by a U.S. missile, and who the United States never alleged committed any harm. Our suit seeks to ensure that there are no more Abdulrahmans in the future, that no more individuals are needlessly killed in dangerously expanding covert U.S. wars that must end.

Well, if it’s accountability they want, then why isn’t President Obama a defendant in the suit? After all, a recent New York Times story which reported leaked classified details of the drone program revealed that Obama personally selects “every new name on an expanding ‘kill list’” of terrorists to be vaporized — including that of Awlaki. White House officials bragged to the Times how Obama “approves lethal action without handwringing,” and how he had told aides that the decision to kill Awlaki with a drone was an “easy one.”

So why, pray tell, are the ACLU and CCR suing Panetta, Petraeus, McRaven, and Votel — but not the president of the United States? After all, Obama boasted that he personally gave the kill order.

Just askin’.

7 thoughts on “Why is the ACLU suing Panetta, Petraeus over Awlaki killing — but not President Obama?

  1. Mr. Thiessen,

    The President is absolutely immune from suit for any actions taken in his official capacity under a Supreme Court decision called Nixon v. Fitzgerald (1982), thus a claim against the President would be frivolous. I don’t know if you knew this already and just wanted to attack the ACLU, or if you just didn’t bother to do the two minutes of legal research it would have taken to answer this question, but I figured that if you’re just askin’, I should do your readers a favor by just answerin’.

  2. The constitution does not protect the life of an American citizen engaged in war against the United States and who is killed while outside the custody of U.S. forces. International agreements ratified by the U.S. Senate also provide no protection to such a person.

    The entire brouhaha about the killing of Awlaki is born of the lack of military service by American adult males. It is because most adult American males have no prior military service that they have such a great deal of difficulty distinguishing between law enforcement actions and warfare. Ideally, the police deter crime through presence, investigate crime, and deliver the accused to the court system for determination of guilt and fate. Ideally, police kill only in self defense or in defense of the public, and only against immediate threats for which the use of deadly force is necessary and reasonable. (Again, note the qualifier of “ideally” – we all know that people do bad things, intentionally or otherwise, even when they wear a badge.)

    For the military, things are more complex. The military also uses force in self-defense. However, unlike the police, the scope for the use of deadly force extends farther than self-defense or defense of the public against an immediate threat. The military may kill in situations that don’t involve self-defense and do not involve an immediate threat. Such a situation involves attacking elements of a hostile force. A hostile force is, in general terms, somebody we are at war with. (There are more specific things to discuss about competent authority and such, but there can be no doubt – a defacto state of war exists between al Qaida and the United States. Al Qaida is a hostile force.)

    To give an example: An aircraft is returning to base after attacking a primary target. The aircraft has ordnance remaining and spots a target of opportunity – for instance, a convoy of enemy trucks carrying fuel or supplies. Let’s assume that the aircraft is likely impervious to the convoy of trucks on account of altitude and the enemy’s lack of sophisticated air defense technologies. The aircraft’s pilot decides to attack the enemy convoy – regardless of the lack of immediate threat. Is this legal? Yes. Absolutely it is legal. Not only is it legal, it is to be highly encouraged. Obliterate such a target. Doing so will degrade the enemy’s will and capacity to fight and therefore will contribute toward victory and the cessation of hostilities on our terms.

    Likewise, a terrorist – one who brazenly declares himself a member of al Qaida in that organization’s own video materials distributed across the internet – is a valid, legal target for our forces to attack and his possession of American citizenship does nothing to change that. It’s war – not law enforcement. Nobody is required to attempt to capture Awlaki. You can argue that you think there is merit in doing so, but there is no legal argument for it. Under the law of war, he would be afforded protected status were he to surrender, but there is no requirement anywhere for the U.S. to facilitate his decision or to warn him ahead of time of an impending attack. Surrendering is the responsibility of the enemy. Let him be prompt in that endeavor.

  3. Actually al Queda is now our ally, both in Libya and Syria.


    or better yet as this one inserts a little Orwellian perspective,


    it seems that the Obama administration is murdering American citizens who are employed as allies in the overthrow of our hated enemies.

    That small matter of the World Trade Center having seemingly been forgotten, if indeed it was al Queda in the first place.

  4. If it’s ok to drone ‘em over there it’s ok to drone ‘em over here.

    Question is, if they give the KKK a fair trial… what’s the difference except our gigantic blind spot created by the flaky fear-inspiring incompetence (or worse) on that fateful day on Sept 11, 2001… which has already led us on one errant war path…

    How many more blunders do we get before we lynch lady liberty herself with our own hypocrisy?

    Don’t tell me the founders didn’t know warfare, tyranny, or the need for secrecy.

    Yet they had the courage of their convictions and the wisdom to make it difficult (but obviously not impossible) to demolish.

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