by Dina Temple-Raston
The father of the Internet's most famous radical cleric, Anwar al-Awlaki, is planning to sue the U.S. government for including his son on a CIA target list.
Nasser al-Awlaki hired the ACLU and the Center for Constitutional Rights last month to file a lawsuit that would question whether his American-born son can be on the CIA's "capture or kill" list. A lawsuit ultimately could seek an injunction to get him removed from the list. That lawsuit hasn't been filed. But it would mark the first legal challenge to the military and CIA target lists.
"This represents a new kind of challenge to American counter-terrorism," said Sam Rascoff, a New York University law professor. "Previous lawsuits have focused mainly on the government's power to detain, interrogate and gather intelligence on individuals as part of the so-called 'war on terror.' Now, for the first time, the government's authority to kill one of its own citizens is in question."
Anwar al-Awlaki is thought to be a senior operative for al-Qaida's arm in Yemen, and he has been linked to both the Fort Hood shootings last November and an attempted bombing on a U.S. airliner on Christmas day.
NPR reported last week that Awlaki's father had been in contact with lawyers in the United States to file the lawsuit.
Restrictions On Representing Awlaki
The American Civil Liberties Union and the CCR say the details of that lawsuit have yet to be worked out, partly because the lawyers have been hamstrung by a federal regulation that limits their ability to defend Awlaki.
Under U.S. Treasury Department rules, the ACLU and CCR have to apply for a license to represent him because he has been designated a terrorist. The human rights lawyers asked a federal district court judge Tuesday to strike down that regulation.
"The same government that is seeking to kill Anwar al-Awlaki has prohibited attorneys from contesting the legality of the government's decision to use lethal force against him," says the complaint filed Tuesday morning.
Later Tuesday, the ACLU and CCR issued a statement addressing the status of the standoff with the Treasury Department's Office of Foreign Assets Control:
"OFAC has neither issued a license nor stated that we don't need one. It suggests that it might eventually grant us a license for our work, but our application has already gone unanswered for eleven days. OFAC is well aware that the case relates to the government's decision to add a U.S. citizen to its 'targeted killing' list. To say that the matter is urgent is a dramatic understatement. Instead of issuing press releases, OFAC should simply issue us a license."
The Obama administration placed Awlaki on a target list earlier this year. The decision came after a young Nigerian tried unsuccessfully to blow up a Detroit-bound airliner on Dec. 25. He told U.S. authorities that Awlaki had directed him to launch the attack. Awlaki is also thought to have inspired Maj. Nidal Hasan, the army psychiatrist who allegedly opened fire on fellow soldiers at Fort Hood in Texas last year.
Deemed A National Security Threat
The Treasury Department's decision to put Awlaki on its terrorism list was more recent. It came just weeks ago — about the same time that Awlaki's father was exploring whether to file a lawsuit against the U.S. government.
Stuart Levey, the Treasury Department's undersecretary for terrorism and financial intelligence, called Awlaki a national security threat.
"Anwar al-Awlaki has proven that he is extraordinarily dangerous, committed to carrying out deadly attacks on Americans and others worldwide," Levey said last month. "He has involved himself in every aspect of the supply chain of terrorism — fundraising for terrorist groups, recruiting and training operatives, and planning and ordering attacks on innocents."
ACLU executive director Anthony Romero acknowledged that Awlaki is a controversial client to represent. "But the issue isn't about Awlaki's character or crimes," he said. "The issue is due process under the law. Mary Poppins isn't on a terrorism list."
Travel To Yemen
Jameel Jaffer was one of two ACLU attorneys who traveled to Yemen in May to sit down with Awlaki's father and discuss the case.
Nasser al-Awlaki formally retained the ACLU and the CCR in early July. He told the lawyers that he feels the Obama administration has essentially green-lighted his son's assassination — without filing any charges or having a court weigh the evidence in the case.
Awlaki hasn't been publicly charged or indicted in the U.S.
Since the Sept. 11 attacks, there has been a debate about where the boundaries of the battlefield actually lie in the war against al-Qaida. The Obama administration has maintained that the battlefield isn't limited to specific parts of Afghanistan, Pakistan or Iraq, but essentially is wherever terrorists may be plotting against the U.S. That's the same position the Bush administration took.
An Awlaki court case could go right to the heart of that issue.
"There's no question that the government has the authority to use lethal force against Americans who join the Taliban, say, or who join the insurgency in Iraq," the ACLU's Jaffer said. "But the United States is not at war in Yemen, and the government doesn't have a blank check to kill terrorism suspects wherever they are in the world. Among the arguments we'll be making is that, outside actual war zones, the authority to use lethal force is narrowly circumscribed, and preserving the rule of law depends on keeping this authority narrow."
