The Obama administration does not want to talk about Anwar al-Aulaqi. A sixty-four page brief sent to the US district court in Washington, D.C. early Saturday morning made this clear. The document—supported in public declarations by the CIA Director Leon Panetta, National Intelligence Director James Clapper and Secretary of Defense Robert Gates—was issued in response to a lawsuit filed by the American Civil Liberties Union and the Center for Constitutional Rights on August 30 and invokes the controversial state secrets privilege in order to halt the rights groups’ attempt at litigation.
The ACLU and CCR challenged the Obama administration’s asserted right to target and kill suspected terrorists—including US citizens, such as the aforementioned Anwar al-Aulaqi—outside of war zones and in the absence of an imminent threat to national security. The rights groups were retained by Nasser al-Aulaqi, father of Anwar al-Aulaqi, who federal authorities maintain is a central figure in the Yemeni terrorist group AQAP (Al-Qaeda in the Arab Peninsula). According to the ACLU and CCR—citing public reports—Anwar al-Aulaqi is among those that intelligence agencies have targeted for killing. Believed to be hiding in Yemen, al-Aulaqi has not been publicly charged with any crime.
Director of the ACLU’s Center for Democracy, Jameel Jaffer, explains that while the government has the legal authority to use lethal force against citizens, it can only do so in narrow circumstances. “A kill list that gives standing authorization to the CIA and the Department of Defense to use lethal force against civilians, without reference to the imminence of any threat, goes beyond what the law allows,” he says.
In response to the lawsuit, the Obama administration invoked the state secrets privilege, which grants the government the power to shut down litigation in situations where evidence presented to the court would result in a threat to national security. In his declaration, Director of National Intelligence Clapper argues that public litigation of the claims laid out by the rights groups would reveal sensitive information that, “reasonably could be expected to cause damage, up to and including exceptionally grave damage, to the national security of the United States.” This sentiment is echoed in the statements of CIA Director Panetta and Secretary of Defense Gates.
Invocation of the state secrets privilege did not come as a shock to the ACLU, who had communicated with the government prior to the dissemination of the brief. Ben Wizner, Litigation Director of the ACLU’s National Security Project, told The Nation on Sunday “Were we surprised by it? The answer is no. Of course not.” Wizner went on to explain, “If you read their pleading they wanted to do it [invoke the state secrets privilege] later but the judge said, ‘Raise all your defenses at once.’”
Sharon Bradford Franklin, Senior Counsel at the Constitution Project, a bipartisan think tank established in order to promote constitutional safeguards, also saw the invocation coming. “We’re not surprised but very disappointed that the administration chose to assert the state secrets privilege and argue that this case should be dismissed on that basis,” said Franklin. In 2007, The Constitution Project’s Liberty and Security Committee released a report entitled “Reforming the State Secrets Privilege.” According to Franklin, the report argued that the privilege, “should be restored to its role as an evidentiary doctrine so that it would protect against disclosure of actual pieces of evidence that might reveal national security secrets, but the privilege should not be an immunity doctrine that blocks litigation from going forward at the outset.” Blocking litigation from going forward at the outset is precisely what the Obama administration is seeking to do.