Before I ever saw this documentary, I had admired Jeremy Scahill as an investigative reporter. Unlike so many reporters who do not deviate from the pack, Scahill has repeatedly demonstrated courage. He investigated Blackwater, a shadowy mercenary outfit and wrote a best-selling book about it. More recently, he has worked as a national security correspondent for The Nation. In that role, he has demonstrated a willingness to go to difficult places in pursuit of a story. He spent a considerable part of the last ten years covering the wars in Iraq and Afghanistan.
It seems to me that journalists like him are rare today. So many journalists aspire to be rich courtiers to power, embedded with those they are supposed to be covering. The trade-off for continuing access to power is the superficial, play-it-safe, gossip-mongering form of conciliationist journalism. These days there is a ton of that.
Real investigative journalism is practically dead and it has been dying for some time now. Which is crazy when you think about it because we need it now more than ever. For all the media we have, so much is an inside the bubble affair, guaranteed not to offend.
So it was with a high level of interest that I viewed Scahill’s documentary, Dirty Wars. The movie shines a light on the War on Terror, a war Scahill describes as “hidden in plain view”.
The movie opens with Scahill travelling into the countryside outside Kabul, Afghanistan into an area on the edge of NATO control. He had to get back before dark because the Taliban controlled the road at night and they had kidnapped journalists there before. Scahill investigates a February 2010 incident that occurred in Gardez where American soldiers made a 4:00am raid looking for Taliban. The soldiers killed five Afghans, including Mohammed Daoud, a senior Afghan police commander, and two pregnant women.
Scahill interviews family members and locals about the incident. It appeared innocent people unrelated to the Taliban were murdered for reasons that were murky at best. The Afghan locals interviewed by Scahill claim that the Americans dug bullets out of bodies afterwards, apparently in an effort to hide their role. Scahill wanted to find out more about the perpetrators.
Returning to the U.S., Scahill tried to drum up interest in the Gardez incident. He managed to appear before Rep. John Conyers’ (D-Mich) House Committee but no other Congressperson showed at the public hearing. Congress was not willing to investigate.
Scahill appeared on TV talk shows which he described as like a boxing match. He was not able to arouse any interest. He did wrangle an interview with General Hugh Shelton, who had been Chairman of the Joint Chiefs. Not surprisingly, Gen. Shelton felt there should be no investigation into Gardez. Shelton argued that he had previously been shot at by women. While he felt it was too bad pregnant women were shot, he felt it was impossible to know if the murdered women were Taliban.
A subsequent UN investigation into the Gardez incident confirmed Scahill’s account. The Afghans in Gardez had described the Americans involved as “American Taliban”. The soldiers had beards. This was the beginning of Scahill’s awareness of JSOC, the Joint Special Operations Command. JSOC was the most covert unit in the military. Later JSOC became famous for killing Osama Bin Laden.
Scahill followed up on JSOC. He interviews two guys with JSOC connections. What he finds out is newsworthy. JSOC is conducting many raids in many countries (Scahill says 75 countries) looking for alleged terrorists. They have target lists like the famous Iraq playing cards. They drop into hot spots around the world and kill people who are on their apparently endless kill lists. This is a far broader mission than killing off some Taliban in Afghanistan.
The second half of the movie is devoted to looking at the War on Terror in its most recent incarnation. Scahill shows the War on Terror has become a limitless, unending mission where lists of alleged bad guys in many countries are targeted for death. When the last name on the list is reached, a new list with new names appears.
Sometimes there is “collateral damage” i.e. people murdered in the kill effort who were not on the kill list but who were in the wrong place at the wrong time. This is typically because the key killing tool is the drone. Anyone nearby a target is likely a goner. The extent of collateral damage is a matter of some controversy. While numbers are minimized by the Obama Administration, Scahill paints a worrisome picture. He worries drones and the covert war are creating more enemies than we are eliminating.
Scahill focuses on the case of Muslim cleric, Anwar Al-Aulaqi and his 16 year old son Abdulrahman. The Executive Branch targeted Anwar Al-Aulaqi for assassination and he was, in fact, assassinated in Yemen in 2011. A drone killed him after he was publicly added to the kill list. The son’s killing came two weeks after the father. The son was eating at an open air restaurant at the time of his death also by drone.
What makes the case of the al-Aulaqis’ unusual is that both were American citizens. The constitutional question does jump out: what about the extrajudicial assassination of an American citizen? What are the rules about that? Do Americans who are suspected terrorists have any rights under the Constitution and due process of law?
At least in the movie version (there is a companion book of the same name by Scahill I have not read) Scahill doesn’t go too heavily into the legal side. Maybe that is because he is not a lawyer. To his credit though, he sees what is at stake. He does note that Al-Aulaqi”s father, Nasser, filed a lawsuit against the killing of his son after it was learned the son was on the kill list. The court dismissed the lawsuit, in part, on lack of standing. The drone attack on Anwar Al-Aulaqi came after this court action.
The ACLU and the Center on Constitutional Rights filed a second lawsuit about the legality of the assassination. Although these issues are of great legal significance, they have received far less attention than they deserve. I believe the case, Al-Aulaqi et al v Panetta et al., filed in the Federal District Court for the District of Columbia is still pending. The government has filed a Motion to Dismiss. I have included a copy of the complaint prepared by plaintiffs’ counsel at the end of this post. I think the plaintiffs’ legal arguments have merit.
Scahill provides some very limited background on Al-Aulaqi. He had been a popular preacher among English-speaking Muslims. After 9/11, he had initially expressed feelings of sympathy for the victims. Things changed though. After an arrest for passport fraud, and spending some time in jail, Al-Aulaqi left the U.S. and went to the U.K.. He lectured frequently especially to ultraconservative young Muslims. Increasingly he was seen as The Guy translating the jihad into English.
A major question in the case is the degree Al-Aulaqi was operational Al-Qaeda as opposed to whether he was simply a preacher. Scahill says there is no evidence he was operational. That is highly disputed. Al-Aulaqi moved to Yemen in 2004 and he went into hiding in the Shabwa mountain region.
It is hard to imagine a more consequential legal case. I would not be surprised if the issues presented do not eventually land in the U.S. Supreme Court.
Based on what I have read, I think Scahill minimizes how sketchy Anwar Al-Aulaqi was. The FBI had identified him as a senior recruiter for Al-Qaeda and I would not find that surprising. He is on record saying horrible stuff including praising Palestinian suicide bombers, praising the Somali group, Al-Shabaab, and praising the Fort Hood shooter Nidal Malik Hasan.
I would factually distinguish his case from the case of his son. Using a drone to kill a 16 year old boy is morally disgusting and it flies in the face of the U.S. Supreme Court decision in Roper v Simmons 593 US 551 (2005) which held it is unconstitutional to impose capital punishment for crimes committed under the age of 18. Here is it not clear that Abdulrahman Al-Aulaqi committed any crimes. It was more a matter of the sins of the father being visited on the son.
The government has been ambiguous about whether the killing of Abdulrahman Al-Aulaqi was a mistake. I have seen no official apologies.
Scahill ends by saying that this war has no end in sight and that the whole world is a battlefield. It is hard to argue with this bleak assessment. I hope we are not in a world where presidential kill lists and drone strikes are the routine American response to terrorism. I expect we would all live to regret such a dehumanized, legally questionable response.
The complaint filed by the plaintiffs in the Al-Aulaqi lawsuit is below:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIACOMPLAINT (Violation of Fourth and Fifth Amendments and Bill of Attainder Clause – targeted killing)
Al-Aulaqi et al v. Panetta et al
1. Since 2001, and routinely since 2009, the United States has carried out deliberate and premeditated killings of suspected terrorists overseas. The U.S. practice of “targeted killing” has resulted in the deaths of thousands of people, including many hundreds of civilian bystanders. While some targeted killings have been carried out in the context of the wars in Afghanistan and Iraq, many have taken place outside the context of armed conflict, in countries including Yemen, Somalia, Pakistan, Sudan, and the Philippines. These killings rely on vague legal standards, a closed executive process, and evidence never presented to the courts. This case concerns the role of Defendants Leon C. Panetta, William H. McRaven, Joseph Votel, and David H. Petraeus (collectively, “Defendants”) in authorizing and directing the killing of three American citizens in Yemen last year. 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.
2. In late 2009 or early 2010, Anwar Al-Aulaqi, an American citizen, was added to “kill lists” maintained by the Central Intelligence Agency (“CIA”) and the Joint Special Operations Command (“JSOC”), a component of the Department of Defense (“DOD”). On September 30, 2011, unmanned CIA and JSOC drones fired missiles at Anwar Al-Aulaqi and his vehicle, killing him and at least three other people, including Samir Khan, another American citizen. Defendants authorized and directed their subordinates to carry out the strike.
3. On October 14, 2011, Defendants authorized and directed another drone strike in Yemen, this one approximately 200 miles away from the strike that had killed Anwar Al-Aulaqi and Samir Khan two weeks earlier. The October 14 strike killed at least seven people at an open-air restaurant, including two children. One of the children was 16- year-old Abdulrahman Al-Aulaqi, who was Anwar Al-Aulaqi’s son and also an American citizen.
4. Defendants’ killing of Anwar Al-Aulaqi was unlawful. At the time of the killing, the United States was not engaged in an armed conflict with or within Yemen. Outside the context of armed conflict, both the United States Constitution and international human rights law prohibit the use of lethal force unless, at the time it is applied, lethal force is a last resort to protect against a concrete, specific, and imminent threat of death or serious physical injury. Upon information and belief, Anwar Al-Aulaqi was not engaged in activities that presented such a threat, and the use of lethal force against him was not a last resort. Even in the context of an armed conflict, the law of war cabins the government’s authority to use lethal force and prohibits killing civilians who are not directly participating in hostilities. The concept of “direct participation” requires both a causal and temporal nexus to hostilities. Upon information and belief, Defendants directed and authorized the killing of Anwar Al-Aulaqi even though he was not then directly participating in hostilities within the meaning of the law of war.
5. Defendants’ killing of Samir Khan and Abdulrahman Al-Aulaqi was also unlawful. Upon information and belief, neither Samir Khan nor Abdulrahman Al-Aulaqi was engaged in any activity that presented a concrete, specific, and imminent threat to life; nor was either of them directly participating in hostilities. The news media have
reported, based on statements attributed to anonymous U.S. government officials, that Samir Khan was not the target of the September 30 strike and that Abdulrahman Al- Aulaqi was not the target of the October 14 strike. If the Defendants were targeting others, they had an obligation under the Constitution and international human rights law to take measures to prevent harm to Samir Khan, Abdulrahman Al-Aulaqi, and other bystanders. Even in the context of an armed conflict, government officials must comply with the requirements of distinction and proportionality and take all feasible measures to protect bystanders. Upon information and belief, Samir Khan and Abdulrahman Al- Aulaqi were killed because Defendants failed to take such measures.
6. Plaintiffs are the personal representatives of the estates of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. They seek damages from Defendants for their role in authorizing and directing the killings of Plaintiffs’ sons and grandson in violation of the Fourth and Fifth Amendments and the Bill of Attainder Clause.
JURISDICTION AND VENUE
7. This complaint is for compensatory damages resulting from the conduct of Defendants, all of them U.S. government officials, in violation of the Fourth and Fifth Amendments and the Bill of Attainder Clause.
8. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 (federal question) and the U.S. Constitution.
9. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1).
10. Plaintiff Nasser Al-Aulaqi is the father of Anwar Al-Aulaqi and the grandfather of Abdulrahman Al-Aulaqi. He is a citizen and resident of Yemen. He
brings this suit as the personal representative of the estates of his son and grandson, American citizens who were killed by missile strikes authorized and directed by Defendants.
11. Plaintiff Sarah Khan, an American citizen, is the mother of Samir Khan. She brings this suit as the personal representative of the estate of her son, an American citizen who was killed by missile strikes authorized and directed by Defendants.
12. Defendant Leon C. Panetta is the Secretary of Defense, a post he has held since July 2011. As Defense Secretary, he has ultimate authority over U.S. armed forces worldwide, including over JSOC. He authorized Anwar Al-Aulaqi’s continued placement on JSOC’s kill list after July 2011 and authorized and directed the missile strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. Between February 2009 and June 2011, Defendant Panetta was the Director of the CIA. As CIA Director, he authorized the addition of Anwar Al-Aulaqi to the CIA’s kill list. He is sued in his individual capacity.
13. Defendant William H. McRaven is Commander of the U.S. Special Operations Command (“USSOCOM”), a post he has held since August 2011. As Commander of USSOCOM, Defendant McRaven has authority over JSOC, a subordinate unified command within USSOCOM. He authorized and directed the missile strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. Between June 2008 and June 2011, he was the Commander of JSOC. In that capacity, he authorized the addition of Anwar Al-Aulaqi to JSOC’s kill list. He is sued in his individual capacity.
14. Defendant Joseph Votel is the Commander of JSOC, a post he has held since June 2011. As Commander of JSOC, he has authority over JSOC operations. He
authorized and directed the missile strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. He is sued in his individual capacity.
15. Defendant David H. Petraeus is the Director of the CIA, a post he has held since September 2011. As CIA Director, he has ultimate authority over the CIA’s operations worldwide. He authorized and directed the missile strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. He is sued in his individual capacity.
“Targeted Killings” by the United States 16. The first reported post-2001 targeted killing by the U.S. government outside
Afghanistan occurred in Yemen in November 2002, when a CIA-operated Predator drone fired a missile at a terrorism suspect traveling in a car with other passengers. The strike killed all passengers in the vehicle, including an American citizen. The United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions later stated that the strike constituted “a clear case of extrajudicial killing” and set an “alarming precedent.”
17. Since 2002, the United States has continued to carry out targeted killings outside the context of armed conflict. The pace of these killings has increased dramatically since 2009. In the course of carrying out these killings, the government has killed many hundreds of civilian bystanders. In December 2009, a U.S. missile strike in the village of al-Majalah, Yemen, killed 41 people, including 21 children.
18. In April 2012, Deputy National Security Advisor John Brennan acknowledged publicly that the United States carries out targeted killings of suspected terrorists “beyond
hot battlefields like Afghanistan,” often using “remotely piloted aircraft” known as “drones.” Both the CIA and JSOC are involved in authorizing, planning, and carrying out these killings; both the CIA and JSOC have carried out such killings in Yemen; and, according to a December 2011 report in the Washington Post and other news sources, the CIA and JSOC “share intelligence and coordinate attacks.” Greg Miller, Under Obama, an Emerging Global Apparatus for Drone Killing, Wash. Post, Dec. 27, 2011.
19. Both the CIA and JSOC maintain “kill lists” setting out the names of the individuals they intend to kill. See Jo Becker & Scott Shane, Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will, N.Y. Times, May 29, 2012. Upon information and belief, the inclusion of an individual on one or both of the lists represents a standing order authorizing and directing certain government personnel to kill that individual. In a February 2011 interview with Newsweek, the CIA’s former acting general counsel John Rizzo described the CIA’s list as “basically a hit list.” He stated that there are approximately 30 individuals on the list “at any given time,” and that “[t]he Predator [drone] is the weapon of choice, but it could also be someone putting a bullet in your head.” Tara McKelvey, Inside the Killing Machine, Newsweek, Feb. 13, 2011.
20. Senior government officials, including then-Director of National Intelligence Dennis Blair and Deputy National Security Advisor John Brennan, have made clear that the government’s claimed authority to carry out the targeted killing of suspected terrorists, including killings executed outside the context of armed conflict, extends to American citizens. However, government officials have offered incomplete and inconsistent explanations of the legal standards that govern the placement of U.S. citizens on the kill lists. Some officials have suggested that the U.S. government targets its
citizens only if they present “imminent” threats, but they have defined the term “imminent” so broadly as to negate its meaning.
Defendants’ Decision to Authorize the Killing of Anwar Al-Aulaqi 21. Plaintiff Nasser Al-Aulaqi is a Yemeni citizen who moved to the United
States in 1966 to study as a Fulbright scholar at New Mexico State University. He and his wife lived in the United States until 1978, when they moved back to Yemen. In Yemen, he served as Minister of Agriculture and Fisheries and president of Sana’a University, and founded and served as president of Ibb University. He currently resides in Yemen with his wife, who is an American citizen, and their family.
22. Plaintiff Nasser Al-Aulaqi’s son, Anwar, was born in 1971 in New Mexico. He moved to Yemen with his parents in 1978. In 1991, he returned to the United States to attend college at Colorado State University. He obtained his master’s degree from San Diego State University and then enrolled in a Ph.D. program at George Washington University, which he attended through December 2001. While living in the United States, he married and had children, including Abdulrahman. He left the United States in 2003, first for the United Kingdom and then for Yemen.
23. In January 2010, the Washington Post reported that JSOC had added Anwar Al-Aulaqi to its kill list and had tried unsuccessfully to kill him in December 2009. Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, Wash. Post, Jan. 27, 2010. Other media organizations reported the same information. In March 2010, the Wall Street Journal reported that then-CIA Director Defendant Panetta stated that Anwar Al-Aulaqi was “someone that we’re looking for” and that “there isn’t any question that he’s one of the individuals that we’re focusing on.” Keith Johnson,
U.S. Seeks Cleric Backing Jihad, Wall St. J., Mar. 26, 2010. In April 2010, multiple media organizations, including the Washington Post, reported that Anwar Al-Aulaqi had been added to the CIA’s kill list. See Greg Miller, Muslim Cleric Aulaqi Is 1st U.S. Citizen on List of Those CIA Is Allowed To Kill, Wash. Post, Apr. 7, 2010.
24. The decision to add Anwar Al-Aulaqi to government kill lists was made after a closed executive process. Defendant Panetta participated in this process, and upon information and belief Defendant McRaven participated in this process as well. Upon information and belief, Defendants authorized and directed Anwar Al-Aulaqi’s killing even though, at the time lethal force was used, Anwar Al-Aulaqi was not engaged in activities that presented a concrete, specific, and imminent threat to life, and even though there were means short of lethal force that could reasonably have been used to address any such threat. Upon information and belief, Defendants authorized and directed Anwar Al-Aulaqi’s killing even though he was not then directly participating in hostilities within the meaning of the law of war.
25. In or around June 2010, the Department of Justice’s Office of Legal Counsel completed a memorandum providing legal justifications for the killing of Anwar Al- Aulaqi. Substantial portions of the memorandum were summarized in October 2011 by the New York Times, which reported, based on conversations with individuals who had read the document, that the memorandum “provided the justification for acting [against Anwar Al-Aulaqi] despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war.” Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. Times, Oct. 8, 2011.
26. Between the time Anwar Al-Aulaqi was added to the JSOC and CIA kill lists and the time he was killed, government officials told reporters that Al-Aulaqi had “cast his lot” with terrorist groups and encouraged others to engage in terrorist activity. Later, they claimed he had played “a key role in setting the strategic direction” for “Al Qaeda in the Arabian Peninsula (AQAP).” The government never publicly indicted Anwar Al- Aulaqi for any crime.
Nasser Al-Aulaqi’s Lawuit to Enjoin the Government from Killing His Son 27. On August 30, 2010, Nasser Al-Aulaqi filed suit in this Court as next friend of
his son, Anwar, asking that the Court enter an injunction barring the President, the CIA, and DOD (including JSOC) from carrying out the targeted killing of his son unless the executive concluded that he presented a concrete, specific, and imminent threat to life, and that there were no reasonably available measures short of lethal force that could be expected to address that threat. After hearing argument on November 8, 2010, the Court dismissed the Complaint on December 7, 2010, holding that Nasser Al-Aulaqi lacked standing to assert his son’s constitutional rights and that at least some of the issues raised by the Complaint were non-justiciable political questions. No appeal was taken.
Samir Khan 28. Plaintiff Sarah Khan is a U.S. citizen who has lived in the United States since
1992 with her husband and children. Her son, Samir, was born in 1985 and became a U.S. citizen in 1998.
29. Samir Khan attended elementary school in Queens, New York, and high school on Long Island, New York. After graduating from high school in 2003, he moved
to North Carolina, where he attended a community college and worked part-time. He left for Yemen in October 2009.
30. Anonymous government officials have told reporters that Samir Khan was a “propagandist” for AQAP. The government never publicly indicted him for any crime.
The September 30, 2011 Killing of Anwar Al-Aulaqi and Samir Khan 31. On the morning of September 30, 2011, Anwar Al-Aulaqi and Samir Khan
were in the Yemeni province of al-Jawf, some 90 miles northeast of Sana’a. Upon information and belief, Defendants Panetta, McRaven, Votel, and Petraeus authorized and directed personnel under their command to fire missiles at Anwar Al-Aulaqi and his vehicle from unmanned U.S. drones. The missiles destroyed the vehicle and killed Anwar Al-Aulaqi, Samir Khan, and at least two others. Witnesses reported that the missile strike left the vehicle a “charred husk” and “tore the [victims’] bodies to pieces.” Dominic Rushe, et al., Anwar al-Awlaki Death: US Keeps Role Under Wraps to Manage Yemen Fallout, Guardian, Sept. 30, 2011; Sudarsan Raghavan, Awlaqi Hit Misses al- Qaeda Bombmaker, Yemen Says, Wash. Post, Sept 30, 2011. According to a September 30, 2011 article in the Washington Post and a June 2012 book by journalist Daniel Klaidman, personnel under Defendants’ command had been surveilling Anwar Al-Aulaqi for a period as long as three weeks leading up to the strike. Greg Miller, Strike on Aulaqi Demonstrates Collaboration Between CIA and Military, Wash. Post, Sept. 30, 2011; Daniel Klaidman, Kill or Capture (2012). Defendants’ lengthy surveillance suggests that the use of lethal force was not a last resort and that additional measures could have been taken to protect bystanders from harm.
32. The surveillance and the strike were carried out by the CIA and JSOC. Upon information and belief, Defendant Petraeus was personally responsible for authorizing and directing the CIA’s involvement in the September 30 strike, and Defendants Panetta, McRaven, and Votel were personally responsible for authorizing and directing JSOC’s involvement in it. Defendants coordinated with each other in planning the attack and carrying it out.
33. Senior government officials, including Defendant Panetta and President Barack Obama, have acknowledged the responsibility of the United States for killing Anwar Al-Aulaqi. On the same day the strike was carried out, DOD published a news article stating that “[a] U.S. airstrike . . . killed . . . Anwar [Al-Aulaqi] early this morning” and that he had been “high on the military-intelligence list of terrorist targets.” Lisa Daniel, Panetta: Awlaki Airstrike Shows U.S.-Yemeni Cooperation, Am. Forces Press Service, Sept. 30, 2011. The following day, Defendant Panetta stated in a public speech that “it is because of th[e] teamwork between our intelligence and our military communities that we were successful in . . . taking down al-Awlaki.” Three weeks later, President Obama stated on national television that “working with the Yemenis, we were able to remove [Anwar Al-Aulaqi] from the field.” Tonight Show with Jay Leno (NBC television broadcast Oct. 25, 2011).
34. Defendants’ killing of Anwar Al-Aulaqi was unlawful. Upon information and belief, Defendants authorized and directed the strike even though, at the time the strike was carried out, Anwar Al-Aulaqi was not engaged in activities that presented a concrete, specific, and imminent threat of death or serious physical injury. Upon information and belief, Defendants authorized and directed the strike even though there were means short
of lethal force that could reasonably have been used to neutralize any threat that Anwar Al-Aulaqi’s activities may have presented. The killing of Anwar Al-Aulaqi was unlawful even if analyzed under the law of war because, upon information and belief, Defendants authorized and directed the strike even though Anwar Al-Aulaqi was not then directly participating in hostilities within the meaning of the law of war.
35. Defendants’ killing of Samir Khan was also unlawful. Samir Khan was not engaged in any activity that presented a concrete, specific, and imminent threat of death or serious physical injury; nor was he directly participating in hostilities. If he was killed because of the government’s targeting of Anwar al-Aulaqi, his killing was unlawful because Al-Aulaqi’s killing was unlawful and because, upon information and belief, Defendants authorized and directed the strike without taking legally required measures to avoid harm to bystanders. Even in the context of an armed conflict, government officials must comply with the requirements of distinction and proportionality and take all feasible measures to protect bystanders. Upon information and belief, Samir Khan was killed because Defendants failed to take such measures.
The October 14, 2011 Killing of Abdulrahman Al-Aulaqi 36. Plaintiff Nasser Al-Aulaqi’s grandson, Abdulrahman Al-Aulaqi, was born in
Denver, Colorado, on August 26, 1995. He was raised in the United States until 2002, when he moved with his family to Yemen. At the time of his death, he was a student in his first year of high school and resided in Sana’a, Yemen, with his mother, siblings, grandmother, and grandfather.
37. On October 14, 2011, Abdulrahman was at an open-air restaurant near the town of Azzan, in the southern Yemeni province of Shabwa. Upon information and
belief, Defendants Panetta, McRaven, Votel, and Petraeus authorized and directed personnel under their command to fire missiles from unmanned U.S. drones at a person at or near the restaurant. According to media sources, the intended target was Ibraham Al- Banna, an Egyptian national, but it was later reported that he was not among those killed by the strike. See Gregory Johnsen, Signature Strikes in Yemen, Waq al-Waq, Apr. 19, 2012. The strike killed at least seven people, including Abdulrahman and one of his cousins, another minor. Abdulrahman himself was 16 years old.
38. After the strike, a senior Obama administration official described Abdulrahman to the Los Angeles Times as a “military-aged male.” Ken Dilanian, Grieving Awlaki Family Protests Yemen Drone Strikes, L.A. Times, Oct. 19, 2011. Other news sources described Abdulrahman as a militant in his twenties. To correct these erroneous descriptions, Abdulrahman’s family provided his birth certificate to the Washington Post. After the Washington Post published the birth certificate, U.S. officials acknowledged in anonymous statements to the press that Abdulrahman had been a minor.
39. Upon information and belief, Defendant Panetta was personally responsible for authorizing and directing the CIA’s involvement in the October 14 strike, and Defendants Petraeus, McRaven, and Votel were personally responsible for authorizing and directing JSOC’s involvement in the October 14 strike. Defendants coordinated with each other in planning the attack and carrying it out.
40. The killing of Abdulrahman Al-Aulaqi was unlawful. Abdulrahman was not engaged in any activity that presented a concrete, specific, and imminent threat of death or serious physical injury; nor was he directly participating in hostilities. If he was killed because the government was targeting another individual, his killing was unlawful
because, upon information and belief, Defendants authorized and directed the strike without taking legally required measures to avoid harm to him. Even in the context of an armed conflict, the government must comply with the requirements of distinction and proportionality and take all feasible measures to protect bystanders. Upon information and belief, Abdulrahman Al-Aulaqi was killed because Defendants failed to take such measures.
CAUSES OF ACTION
First Claim for Relief Fifth Amendment: Due Process
41. Defendants’ actions described herein violated the substantive and procedural due process rights of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi under the Fifth Amendment to the Constitution. Defendants Panetta, McRaven, Votel, and Petraeus violated the Fifth Amendment due process rights of Anwar al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi by authorizing and directing their subordinates to use lethal force against them in the circumstances described above. The deaths of Anwar al- Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi were a foreseeable result of Defendants’ actions and omissions.
Second Claim for Relief Fourth Amendment: Unreasonable Seizure
42. Defendants’ actions described herein violated the rights of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi to be free from unreasonable seizures under the Fourth Amendment to the Constitution. Defendants Panetta, McRaven, Votel, and Petraeus violated the Fourth Amendment rights of Anwar al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi by authorizing and directing their subordinates to use lethal
force against them in the circumstances described above. The deaths of Anwar al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi were a foreseeable result of Defendants’ actions and omissions.
Third Claim for Relief Bill of Attainder
43. Defendants’ actions described herein with respect to Anwar Al-Aulaqi violated the Constitution’s Bill of Attainder Clause. Defendants’ actions constituted an unconstitutional act of attainder because Defendants designated Anwar Al-Aulaqi for death without the protections of a judicial trial in the circumstances described above. The death of Anwar al-Aulaqi was a foreseeable result of Defendants’ actions and omissions.
PRAYER FOR RELIEF
Wherefore, Plaintiffs respectfully request that this Court enter judgment awarding them:
Damages in an amount to be determined at trial; and Such other relief as the Court deems just and proper.
/s/ Arthur B. Spitzer ________________________ Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union of the Nation’s Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008 Telephone: (202) 457-0800; Fax: (202) 452-1868 art
Jameel Jaffer (to be admitted pro hac vice) Hina Shamsi (to be admitted pro hac vice) Nathan Freed Wessler American Civil Liberties Union Foundation 125 Broad Street, 18th Floor
New York, NY 10004 (212) 519-7814 jjaffer
Pardiss Kebriaei (to be admitted pro hac vice) Maria C. LaHood (to be admitted pro hac vice) Baher Azmy Center for Constitutional Rights
666 Broadway, 7th floor New York, NY 10012 (212) 614-6452 pkebriaei
July 18, 2012
As hard as it is to believe, it has been 50 years since the assassination of President John F. Kennedy. For those of us who lived through those times and are lucky enough to still be around, I would say no single event has had the seismic shock of JFK’s death.
Talking to people my age (62) and older, pretty much everyone remembers where they were when they heard the news. I was in school near Philadelphia in a seventh grade class. We all knew something was up because all the students were herded together into an impromptu assembly. School officials made the announcement. I remember getting the news, walking home afterwards, shell-shocked, crying.
That was the beginning of a shocking couple days that has been fairly described as the end of American innocence. Along with millions of others, I watched Jack Ruby shoot Lee Harvey Oswald, live on national TV. That was an unmatched dose of reality. Then there was the unbearably sad funeral of President Kennedy. I have a vivid image of John-John saluting his dead father.
Thinking back on that time, it is not the assassination that grabs me. I have no idea whether a conspiracy killed President Kennedy and I am unwilling to devote the time to become an obsessive tracker of those long ago events.
I have a different take away from that time. I think President Kennedy’s most lasting accomplishment is that he did not participate in blowing us all up. Maybe only those who lived through that period know how close we came to a nuclear war during the Cuban Missile Crisis.
The fact that JFK helped to avert what could have been an utterly disastrous outcome is his greatest legacy. It allowed those of us alive to live, not to mention future generations.
Given the experience of the last 50 years with our excessive militarism, including fighting stupid wars that have had little, bad, or no justification, it is remarkable that we survived that time. The same mentality which counselled reckless military adventurism in the Cuban Missile Crisis repeatedly got us into trouble later.
We seriously dodged a bullet, or I should say, a holocaust. History is littered with miscalculations, blunders, and grievous errors made by political leaders which have caused massive amounts of unnecessary suffering and death. This could so easily have been such a miscalculation.
Just to flash back to that Cold War time: the Cuban Missile Crisis occurred in the aftermath of the Bay of Pigs operation. In April 1961, a Cuban exile brigade, organized and trained by the CIA, invaded Cuba and unsuccessfully attempted to overthrow Fidel Castro’s government.
Responding to the continuing threat to Cuba and also to the threat posed by the installation of Jupiter nuclear missiles in Italy and Turkey near the Soviet Union, Soviet Premier Nikita Khrushchev secretly deployed nuclear-armed missiles inside Cuba, only 90 miles from the United States. When President Kennedy became aware of the Soviet Cuba missiles, he ultimately ordered a naval quarantine around Cuba and he demanded that Khrushchev remove all the missiles. Kennedy would not allow any more Soviet ships to reach the island.
For thirteen days in October 1962, the world held its breath as the crisis unfolded. Our government had to navigate treacherous waters. President Kennedy was under tremendous pressure to opt for an aggressive military response. As I mentioned, he decided on the quarantine strategy, an approach the military hated. No one knew if Khrushchev would send his ships across the quarantine line. It looked like a nuclear war was imminent.
To his great credit, President Kennedy resisted the military leaders who wanted to bomb and invade Cuba. On White House tapes declassified in the 1990’s, we know that Air Force Chief of Staff General Curtis Lemay, who was the inspiration for a Dr. Strangelove character, taunted Kennedy in front of all the Joint Chiefs in a meeting on October 19, 1962. LeMay accused Kennedy of weakness and appeasing the Soviets. He compared Kennedy’s actions to Munich in 1938 when the British leader Neville Chamberlain famously appeased Hitler.
Our military commanders, the Joint Chiefs, wanted a massive attack on Soviet missiles, Cuban air defenses, and all communication systems. After the meeting with the Joint Chiefs, President Kennedy told his aide Dave Powers, “These brass hats have one great advantage in their favor. If we listen to them, and we do what they want us to do, none of us will be alive later to tell them they were wrong.”
We now know from Defense Secretary Robert McNamera’s memoir that the Soviets possessed well over 100 nuclear warheads in Cuba that were ready to launch. That does not include their ICBMs, bombers, or their submarine-based missiles. Even considering the vast nuclear superiority of the United States, there were more than enough nuclear warheads to kill multiple millions on both sides. There can be little doubt that if a nuclear war had happened large swaths of both the U.S. and the USSR would have become uninhabitable radioactive wastelands.
Khrushchev ordered Soviet ships not to cross the quarantine line. This brave act on Khrushchev’s part set the stage for a deescalation of tensions. It is not entirely clear why Khrushchev stopped his ships and had them turn back from the quarantine line. Both leaders legitimately feared that any military action could spiral out of control into a nuclear exchange.
It was revealed in 1993 that Kennedy and Khrushchev had a secret correspondence that started in September 1961 and continued for two years. They wrote private letters to each other. It is possible this simple act of communication later known as the Pen Pal correspondence contributed to some level of trust and to a peaceful resolution. Khrushchev, in the correspondence had used the metaphor of Noah’s Ark where both the ‘clean’ and the ‘unclean’ find sanctuary. Kennedy responded:
“I like very much your analogy of Noah’s Ark, with both the ‘clean’ and the ‘unclean’ determined that it stay afloat. Whatever our differences, our collaboration to keep the peace is as urgent – if not more urgent – than our collaboration to win the last world war.”
Since that time, as a result of investigative journalism, we now know much more about the dark side of President Kennedy. Reporters like Seymour Hersh and others have exposed all kinds of indiscretions. We know Kennedy cynically demagogued about a missile gap with the Soviets that did not exist. He was possibly involved in plots to kill Castro. Contrary to popular belief, he tried during the first part of his administration to avoid civil rights issues. We know he suffered from Addison’s Disease and that he had a terrible problem with back pain. All these revelations may well be true but for me they do not change the underlying conclusion that in the clutch, Kennedy’s good judgement saved us from a nightmare.
In fairness, since I mentioned the dark side, I would also note Kennedy’s charm, humor, style,and cool. He represented a big break from the somnolence of the Eisenhower 50’s. It is ironic that someone who was actually so physically disabled publicly represented vigor and youth.
The period of the early 60’s featured people building bomb shelters, policy analysts plotting winnable nuclear wars, and a tremendous expansion of the military-industrial complex. Albert Einstein earlier had written:
“Our world faces a crisis as yet unperceived by those possessing power to make great decisions for good or evil. The unleashed power of the atom has changed everything save our modes of thinking and we thus drift toward unparalleled catastrophes.”
I submit that we are extremely lucky President Kennedy had the wisdom and courage to go against the tide at a most critical juncture. Otherwise, we might not all be here.
It has been almost a year since I have used this space to highlight any of my favorite poets. I would easily place Yehuda Amichai in that category. He was also probably Israel’s most popular poet and it is easy to see why. He has the accessibility and charm of a Langston Hughes.
Amichai has a kind of everyman down-to-earthness. In his poems, it is like he is speaking to ordinary people in a totally unpretentious and understandable way. He also has a very Jewish bittersweet and melancholy sensibility. He once said that he wrote in order to comfort himself about life, about wars, and about difficulty.
I discovered Amichai reading Tikkun Magazine back in the late 80’s. In its initial issue, I believe, they ran Amichai’s long autobiographical poem, The Travels of Benjamin the Last, of Tudela.
Amichai was born into an Orthodox Jewish family. His family spoke both German and Hebrew. When he was eleven, his family immigrated to Mandate Palestine, a move that turned out to be a life-saver. Mandate Palestine was the entity carved out under British administration from 1920 to 1948. This was before the State of Israel came into existence.
As a young man, Amichai was a member of the Palmach, the strike force of the Haganah. They were a military force in defense of the Jewish community. Amichai described the Haganah as a very mainstream movement. He was personally very skeptical of ideologies. He was a person of the left though. To quote him: “We were young – socialists, Zionists – and we believed in a new and better world.” He said that the main principle of his military group was to hold back and not retaliate. That was not always a popular position.
Amichai ultimately had quite a bit of military experience. He volunteered and joined the British Army to fight in World War II. He fought in the Negev during Israel’s War of Independence. He later fought in the 1956 Sinai War and the 1973 Yom Kippur War. However, he was not a poet of any military braggadacio. In his poems, he hardly seems a fan of any war. He believed in non-violence but he was not absolutist. He, after all, was living in the era of the Nazis.
After his early war experience, Amichai went to Hebrew University in Jerusalem. He studied to be a teacher. After working in Haifa, he moved back to Jerusalem where he lived most of his life. He has written many beautiful poems about Jerusalem although he hated the idea he was a Jerusalem poet.
In an interview with the Paris Review, Amichai said that all poetry is political. This is because real poems deal with a human response to reality and politics is part of reality. It is history in the making. He said:
“My politics are very much rooted in a humanist context. My politics were not based as such on Marxist theory, but rather on the principle pf maximum justice and equality among people. Of course I was always aware that people are not born with equal talents and capacities but I believed that a social system had to maximize opportunities and freedom for all human beings…I’ve lived through so many betrayals of romantic political ideals – the main thing I believe now is to do as much as possible to prevent war.”
In the Paris Review interview, he described himself as an Israeli secular humanist. He said whoever reads his poetry could never arrive at fundamentalist, absolutist thinking. He stated that there’s an old Jewish saying: if you meet the devil, take him with you into the synagogue. Try to take the evil of politics into yourself, to influence it imaginatively – to give it human shape.
I did want to recount one story Amichai tells in the Paris Review interview. During the Israeli War of Independence, he described his military group happening onto an Egyptian detention camp in the Sinai Peninsula. There, Egyptian liberals, socialists and communists had been imprisoned by King Farouk. Amichai participated in liberating the camp. The Israelis and the Egyptians embraced one another. Amichai said that he felt he was part of a new world, breaking down monarchy and imperialism.
I do not know nearly enough Hebrew to read untranslated Amichai. One translator, Robert Alter, has written:
“Amichai’s exploitation of indigenous stylistic resources is often connected with his sensitivity to the expressed sounds of the Hebrew words he uses and with the inventive puns, which are sometimes playful sometimes dead serious, and often both at once. But what is most untranslatable are the extraordinary allusive twists he gives to densely specific Hebrew terms and texts.”
So I guess a lot is lost in translation. Critics credit Amichai with being a pioneer in developing a colloquial Hebrew.
I did want to offer up some of Amichai’s poems to share. It was hard to decide which ones to use. I am picking ones I randomly liked. For those of you who might like to explore more, I would mention “Yehuda Amichai: A Life in Poetry 1948-1994” translated by Benjamin and Barbara Harshav and The Selected Poetry of Yehuda Amichai. This volume was translated by Chana Bloch and Stephen Mitchell.
In The Middle Of This Century
In the middle of this century we turned to each other
With half a face and full eyes
Like an ancient Egyptian painting,
For a short while.
I stroked your hair
Against the direction of the march.
We called each other
Like names of cities that one passes through
Along the road.
Beautiful is the world waking up for evil.
Beautiful is the world falling asleep for sin and grace.
In the discordance of our being together, you and I.
Beautiful is the world.
The earth drinks people and their loves
Like wine, in order to forget. Impossible.
Like the contours of the mountains of Yehuda,
We too will not find peace.
In the middle of this century we turned to each other,
I saw your body, casting a shadow, waiting for me.
The leather straps of a long voyage
Are tightened diagonally across my chest.
I spoke words in praise of your mortal loins,
You spoke words in praise of my transient face,
I stroked your hair in the direction of the march,
I touched the heralds of your end,
I touched your hand that never slept,
I touched your mouth that perhaps will sing.
The dust of the desert covered the table,
We did not eat on it.
But I wrote on it with my finger the letters of your name.
I Have Dead People
I have dead people, buried in the air.
I have a bereaved mother while I’m still alive.
I am like a place
At war with time.
Once, the green color rejoiced
Near your face in the window.
Only in my dreams
Do I still love hard.
People in the Dark Always See
People in the dark always see people
In the light. It’s an old truth, since sun and night
Were created, people and darkness, and electricity.
A truth exploited by those who make war
For easy killing in an ambush, a truth that enables
The unhappy to see the happy, and the lonely — people in love
In a brightly lit room.
Yet true life is led between dark and light:
“I locked the door,” you said,
An important sentence, full of destiny.
I still remember the words,
But I forgot on which side of the door they were said,
Inside or outside.
And from the only letter I wrote to you
I remember only the bitter taste of
The stamp’s glue on my tongue.
I was born in 1924. If I were a violin my age
I wouldn’t be very good. As a wine I would be splendid
Or altogether sour. As a dog I would be dead. As a book
I would begin to be expensive or thrown out by now.
As a forest I would be young, as a machine ridiculous,
And as a human being I’m very tired.
I was born in 1924. When I think about humanity
I think just about those born in my year.
Their mothers gave birth with my mother,
Wherever they were, in hospitals or in dark flats.
On this day, my birthday, I would like
To say a great prayer for you,
Whose load of hopes and disappointments
Pulls your life downward,
Whose deeds diminish
And whose gods increase
You are all brothers of my hope and companions of my despair.
May you find the right rest,
The living in their life, the dead in their death.
He who remembers his childhood better
Than others is the winner,
If there are any winners at all.
I sat in the waiting room with bridegrooms many years
Younger than me. Had I lived in ancient days,
I would be a prophet. But now I wait quietly
To register my name and the name of my beloved in the big Book
Of Marriages and to answer questions I can still
Answer. I filled my life with words,
I gathered in my body information that can feed the
Intelligence services of several countries.
With heavy steps I carry light thoughts,
As in my youth I carried thoughts heavy with destiny
On light feet, almost dancing with so much future.
The pressure of my life brings my birthday closer
To my death day, like history books,
Where the pressure of history brings those two
Numbers together with the name of a dead king,
Just a hyphen separating them.
I hold on to the hyphen with all my being,
As to a life raft, I live on it,
And the oath not to be alone is on my lips,
The voice of the bridegroom and the voice of the bride and the voice
Of children playing in the streets of Jerusalem
And in the mountains of Yehuda.
Gods Come and Go, Prayers Remain Forever
I saw in the street on a summer evening
I saw a woman writing words
On a paper spread on a locked wooden door,
She folded it and slipped it between the door and the doorpost
And went off.
I didn’t see her face or the face of the man
Who will read the writing and not the words.
On my desk lies a rock with the inscription “Amen,”
Piece of a tombstone, remnant of a Jewish graveyard
Ruined a thousand years ago in the city of my birth.
One word, “Amen” carved deep in the stone,
Hard and final, Amen to all that was and will not return,
Soft Amen: chanting like a prayer,
Amen, Amen, may it be His will.
Tombstones crumble, words come and go, words are forgotten,
The lips that uttered them turn to dust,
Tongues die like people, other tongues come to life,
Gods in the sky change, gods come and go,
Prayers remain forever.
Sometimes the blurbs on the back of a book can grab you. Such was the case with Katy Butler’s new book “Knocking On Heaven’s Door”, subtitled “The Path To A Better Way of Death”. The blurbs included praise from Annie Lamott, Dr. Sherwin Nuland, Adam Hochschild, Alexandra Styron and others. It was enough to hook me.
I was curious what Butler had in mind for a better way of death. Really the topic is ignored and I guess no one wants to think much about death. Considering its omnipresence in all of our lives, the denial of death still remains surprising. It looms larger as you hit your early 60’s because whatever you think about it, it is around you more. That is generally not true in your 20’s or 30’s.
The heart of the book is Butler’s heartfelt, honest exploration of the death and dying experiences of her parents. She asks many good questions about our societal approach to the end of life.
Her argument really is about the good death. She argues that we have in the name of life preservation embraced the use of medical technology to keep people alive as long as possible. Instead of death with dignity, we treat death as the enemy and struggle to keep people alive regardless of circumstance. In the process we belittle quality of life. We keep people going who suffer from dementia; who are utterly enfeebled; and who are experiencing awful pain.
Butler captures the misery of people living on when their physical and psychological capacities have been greatly diminished. She is not arguing for euthanasia so much as she is raising questions about our life-at-all-costs approach. To quote Butler:
“Eyesight dims, joints stiffen, heart beats slow, veins clog, lungs and bowels give out, muscles wither, kidneys weaken, brains shrink. Half of Americans eighty-five or over need help with at least one practical, life-sustaining activity such as getting dressed or eating breakfast. Nearly a third have some form of dementia and more develop it with each year of added longevity.”
She shows the difficulty of questioning doctors about allegedly life sustaining treatment. Often, family caregivers must face the hard question of whether their beloved and frail elder should undergo some medical procedure to save and extend life. As Butler says, “When is it time to say “No” to a doctor? To say “Enough”. ”
Butler goes on to discuss both the economic and human costs of medical overtreatment. She points out that a quarter of Medicare’s $560 billion in annual outlays cover medical care in the last year of life. She questions the wisdom of many Medicare expenditures and whether they are primarily about profit – not patient well-being.
As for the dying experience itself, too often people are sheparded into alien hospitals where they are hooked up to a multitude of machines while an ever-changing cast of doctors make brief cameo appearances. The dying person is typically surrounded by strangers, albeit well-meaning strangers, who do not know the person they are tending. I would argue, along with Butler, that dying at home or in a comfortable environment surrounded by your family and friends is an infinitely better way to go than the hospital scenario.
Butler tells the personal stories of both her parents. They were a lively and healthy couple. They exercised daily, ate fish, vegetables and fruit. They had a good ‘young old age’. They did everything right as far as taking care of themselves. And then, in 2001, Butler’s father, Jeffrey, had a stroke. This was the beginning of his decline which went on for years. As she poetically described it, her family’s life which once looked like a jeweled snowflake became a dark flower.
Butler is a very empathetic and loving chronicler of her father’s last years. She belatedly questions the implantation of a pacemaker (a year after the stroke) which kept her father going a lot longer. Butler’s mother, Valerie, had to assist in all activities of daily living. Her father could not get out of bed, brush his teeth, get dressed or wipe his bottom. Butler doesn’t sugarcoat. She showed the stroke devastated two lives and transformed her mother into a 24/7 caretaker.
Butler’s mother, with whom she had a problematic relationship, had been a formidable, difficult mother. I liked how honest Butler was about her family and its complexities. Experiencing serious heart trouble at age 84, Valerie decided against major surgery. She did not want to risk being debilitated or being put into a nursing home. She rejected all heroic measures and fought the doctors who wanted to do procedures on her. Butler describes her mother’s death this way:
“She died of old age, sickness, and death. She died of a heart calcified and broken by six years of nonstop caregiving. She died of being eighty-four. She was continent and lucid to her end. She took back her body from her doctors. She died the death she chose, not the death they had in mind. She reclaimed her moral authority from the broken medical system that had held her husband hostage. She died like a warrior. Her dying was painful, messy and imperfect but that is the uncontrollable nature of dying. She faced it head-on.”
Reading about Butler’s experience with her parents made me reflect more on the deaths of my family members. My sister Lisa was the only one who escaped the hospital end of life scenario. Her death, as awful as it was, at least happened in the familiar setting of my parent’s apartment in Wynnewood Pa. Lisa had gotten help from hospice and she was surrounded by very loving friends and family. The fact that her diagnosis of breast cancer was known helped her plan.
I am not sure if both my parents had to die in a hospital. I think not in the case of my dad. He had been in failing health for reasons that were not entirely clear. He was 88. He had been diagnosed with a herniated disc. He had been presenting with back pain. We did not know the reason for his illness and death was really adenocarcinoma. We only found that out after he died. The cancer had been masked behind the back issues and I do not know why it was not diagnosed earlier. If we had known earlier that cancer was going on, he could have died at home. I was not impressed with the care he received at Lankenau Hospital in Philadelphia. There seemed to be no continuity of care.
As for my mom, her medical issues cascaded quickly. She died relatively suddenly within the course of a weekend. She had had a rough four month period where she had been to the hospital, assisted living, and back at home briefly. It seemed like she was getting stronger although she was 85. My mom had a heart attack. She had previously had a diagnosis of congestive heart failure. The doctors could not get her medications right, it seemed. As I have mentioned previously, I am not sure how much my mom wanted to live at that point. My only solace is that she went quickly.
My mom was not a fan of any nursing home. She saw nursing homes as scary places, in part, because she had seen the experience of her good friend, Jane Fried. Jane had been shelved away in a nursing home outside of Philadelphia far away from any family. Jane’s husband Bud had also originally been placed there too. He died under what seemed mysterious conditions when he supposedly choked on food. After Bud’s death, Jane remained there. My mom saw Jane become delusional after an extended stay (apparently not an unfamiliar outcome for many nursing home residents). My mom was horrified.
My mom and I used to discuss the creepiness and alienation so readily visible at the nursing home whenever we visited Jane. My mom, a loyal friend, went out there often. The gorked out people; residents sitting alone, isolated in wheelchairs in front of TVs that never went off; the end of life sadness and loneliness where visits from relatives were rare treats: all were part of that scene. Maybe if we were more accepting of death, we could figure out end of life settings that are communal and honoring rather than remote, out of sight and out of mind.
Butler touts a movement she calls Slow Medicine. She writes about taking back death from medicine in the same way the natural child birth movement recaptured birth in the 1970’s. Her antidote to medical overtreatment is not undertreatment. It is what she calls appropriate care. Butler has performed a wonderful service by initiating discussion around a whole range of issues related to dying. She suggests humane alternatives to how we typically as a society do dying. By presenting a true picture of her parents’ lives and suffering, she has honored them.