Can the CIA Put a U.S.-Born al Qaeda Figure on its "Kill List"?

The American Civil Liberties Union is challenging the Obama administration's alleged inclusion of a radical, Yemen-based cleric on a "kill list" of foreign terrorists. What makes this case particularly salient is that the cleric, al Qaeda propagandist Anwar al-Awlaki, is an American citizen. Can the United States target one of its citizens without, at a minimum, due process? In this situation, legal experts say, citizenship provides no protection—and, in any event, the facts of the ACLU's case are unlikely to even get a full court hearing.

U.S. officials say al-Awlaki is linked to, among other incidents, the Fort Hood shooting in Texas and the would-be underwear bomber of last Christmas. CIA chief Leon Panetta, in a television interview this summer, noted that al-Awlaki is "first and foremost a terrorist, and we're going to treat him like a terrorist."

The ACLU suit, filed last week in federal court, relies heavily on media reports that officials early this year put al-Awlaki on a terrorist "kill list" that permits the use of lethal force "without charge, trial, or conviction." Moreover, the suit says that the process gives officials "sweeping authority to impose extrajudicial death sentences in violation of the Constitution and international law." Both the Justice Department and the CIA insist that the actions are legal. "This agency acts in strict accord with American law," says Marie Harf, a CIA spokesperson.

The case raises related legal questions about the use of armed drones, one of the most controversial (and, say officials, effective) counterterrorism programs, beyond the conventionally defined limits of a battlefield. Perhaps most importantly, says John Radsan, a law professor and former CIA assistant general counsel, "this case brings into sharp focus a central legal question: Does membership in al Qaeda subject someone to the laws of armed conflict?"

But legal experts don't expect the courts to agree to hear the case. "If a lawsuit is inevitably going to lead to the disclosure of classified information, then the courts usually don't get involved in hearing it," says Robert Turner, who heads the Center for National Security Law at the University of Virginia.

In some instances, the government must go to court and invoke the "state secrets privilege," a move that has quashed more than a dozen terrorism or intelligence-related lawsuits since the 9/11 attacks. Other times, the courts rule on procedural grounds that the plaintiffs, in this case both the ACLU and al-Awlaki's father, a Yemeni citizen, lack legal standing. "I think the ACLU has filed this case to prompt more public and legal debate about the drone program, which has not received, in their minds, the attention that it should," Radsan says.

The drone program has attracted neither the scrutiny nor the outrage directed at the detention of suspected terrorists at Guantánamo Bay, though the legal pillars supporting both programs are closely related. International and domestic law allows for the use of lethal force against groups and individuals that pose a threat.

Following the 9/11 attacks, Congress approved the use of military force against the al Qaeda network and since then suspected al Qaeda figures have been killed by CIA drone strikes in Pakistan and Yemen. The CIA and the Justice Department both maintain the legality of the drone program, which is not formally acknowledged by the government, but is often discussed unofficially. Indeed, it has been called one of the CIA's least secret operations.

In a rare and carefully worded public defense, State Department Legal Adviser Harold Koh told the annual convention of the American Society of International Law in March that "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war."

Anticipating the kind of legal challenges raised in the suit filed this week, Koh noted that "some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. "Given that legal justification, says Turner, al-Awlaki "has the same rights as a private in the German Panzer Corps during the Second World War—he's got the right to wave the white flag and surrender or continue fighting."

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