The US Treasury Department has just granted the ACLU and the Center for Constitutional Rights the license they need to sue the Obama administration on behalf of Anwar al-Awlaki, an accused terrorist and American citizen who has reportedly been placed on a government "kill list." Here's the statement from the groups, who sued for the license on Tuesday:
The license issued by OFAC today will allow us to pursue our litigation relating to the government’s asserted authority to engage in targeted killings of American civilians without due process. While we appreciate OFAC’s quick response to our lawsuit, we continue to believe that OFAC’s regulations are unconstitutional because they require lawyers who are providing uncompensated legal representation to seek the government’s permission before challenging the constitutionality of the government’s conduct. Notably, OFAC has indicated that the license issued to us today can be revoked at any time. We will pursue our claim that OFAC’s attorney-licensing regulations are unconstitutional and should be invalidated.
This statement jives with what ACLU and CCR officials suggested in yesterday's conference call—namely, that even if they did get their license, they'd still sue, because they believe OFAC's licensing requirements are unconstitutional. Still, by issuing the license, Treasury is essentially calling the ACLU and CCR's bluff. This won't be an easy case for the groups to win. When I called around about potential al-Awlaki litigation back in February, sources at civil rights groups acknowledged that al-Awlaki—who's been linked to the Fort Hood shooter, the Christmas Day bombings, and even 9/11—is a particularly unsympathetic client. They weren't even particularly sure how they'd pursue the issue. "Presumably you could go to court to seek some kind of injunction or declaration," said one legal expert at a top civil rights group who asked to remain anonymous due to the sensitivity of the issue. "But there'd be all sorts of obstacles to a lawsuit like that," the expert explained.
Indeed. I asked Deborah Pearlstein, a Princeton University professor, about al-Awlaki a few months ago. She said potential plaintiffs shouldn't get their hopes up. "In general, civil suits against US government officials alleging violations of US and international law based on the government’s post-9/11 conduct (torture, etc.) have been roundly unsuccessful," Pearlstein wrote in an email. "While Al-Awlaki’s citizenship makes his case a more complicated—and somewhat more promising—case than the case of the non-citizen torture victims, I would still be enormously skeptical about the ability of such a lawsuit to succeed in US courts today."
One important problem is that al-Awlaki can't appear in court—after all, the government's allegedly trying to kill him. So someone has to appear on his behalf, and prove that they have legal standing to bring the case. With regards to the legal standing issue, Pearlstein pointed me to the 2005 case in RE: Iraq and Afghanistan Detainees Litigation, which she worked on for Human Rights First:
[R]equests for prospective relief require a demonstration that the plaintiff has standing going forward; in that case, it required a fairly specific demonstration that it was likely the plaintiffs would be detained again by the US in Iraq. The court in that case concluded – in 2005, when the Iraq war was at its height, the plaintiffs were in Iraq, and some of them had been detained more than once, etc. – that the plaintiffs hadn’t shown a specific enough risk of rearrest and torture to establish standing to sue.
In other words, it's really hard to prove the government is planning to do something to you, specifically, in the future.
In any case, the Obama administration would "almost definitely" try to prevent al-Awlaki's case from actually being heard, Glenn Greenwald, the blogger and constitutional lawyer, told me. Under the "state secrets" privilege, the government could stop al-Awlaki's case before it began by claiming that even airing the case in court could reveal crucial national security information—like the fact that al-Awlaki's name is on a hit list.
Still, the court might reject a state secrets claim. While it's one thing to use the privilege to stop plaintiffs who are seeking redress for past wrongs, it's "another thing entirely to tell someone who's seeking an injunction to protect their life" that they can't do so, Greenwald said. The ACLU's Jameel Jaffer thinks his team has a strong case against a state secrets claim. "The administration has made no secret of their targeted killing program and their placement of Anwar al-Awlaki on targeted killing list," he said on the conference call. "It cannot be that the government can implement a program like this, discuss it publicly, and then when it comes time to defend it in court claim [the] state secrets" privilege.
Even if the government's state secrets claim failed, Greenwald thought a suit by al-Awlaki or another person on the list would still face considerable hurdles. "An argument a court would be more likely to accept is the generalized claim that in a time of war on foreign soil the court shouldn't interfere with battlefield decisions of the Commander in Chief," he said.
The ACLU and CCR, no strangers to post-9/11 war-on-terror litigation, almost certainly know how difficult the road ahead will be. They also understand that a lawsuit can only draw attention to the fact that Barack Obama believes he has the right to order the extrajudicial killing of American citizens. If more people know about that, maybe the administration will be forced to change its position. But don't get your hopes up.
Parts of this post are republished from an earlier item on al-Awlaki.