Home > Uncategorized > Movie Review: “Dirty Wars” featuring Jeremy Scahill – posted 11/29/2013

Movie Review: “Dirty Wars” featuring Jeremy Scahill – posted 11/29/2013

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
INTRODUCTION
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).
PARTIES
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.
FACTUAL ALLEGATIONS
“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
10
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:
A. B.
Damages in an amount to be determined at trial; and Such other relief as the Court deems just and proper.
Respectfully submitted,
/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

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  1. November 30, 2013 at 1:50 pm

    I was curious if you ever considered changing the structure of your website?
    Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better.

    Youve got an awful lot of text for only having one or 2 pictures.
    Maybe you could space it out better?

    • December 2, 2013 at 9:31 am

      I have considered it. I just have notgotten around to doing anything about it! I agree with your comments.

  2. December 1, 2013 at 8:00 am

    I seldom leave a response, but i did a few searching and wound up here Movie Review: Dirty Wars featuring Jeremy Scahill – posted 11/29/2013 |
    Jonathan P. Baird. And I actually do have
    2 questions for you if it’s allright. Could it be simply me or does it seem like a few of the comments come across like left
    by brain dead people? 😛 And, if you are posting at other places,
    I’d like to keep up with everything new you have to post.
    Would you make a list of all of all your communal pages like your Facebook page, twitter
    feed, or linkedin profile?

    • December 2, 2013 at 12:16 am

      I am not posting anywhere else. Thanks for reading and I hope you enjoy the site.

  3. December 7, 2013 at 6:59 pm

    Hi! This is my first comment here so I just wanted to
    give a quick shout out and tell you I genuinely enjoy
    reading your posts. Can you recommend any other blogs/websites/forums that cover the same subjects?

    Thanks a lot!

  4. December 7, 2013 at 9:32 pm

    Greetings from Ohio! I’m bored at work so I decided to check out your site on my iphone during lunch break.
    I really like the knowledge you present here and can’t
    wait to take a look when I get home. I’m
    amazed at how fast your blog loaded on my mobile .. I’m
    not even using WIFI, just 3G .. Anyways, awesome blog!

  5. December 13, 2013 at 9:26 pm

    Wonderful article! We are linking to this great
    post on our website. Keep up the great writing.

  6. December 15, 2013 at 9:32 am

    Hello! Do you use Twitter? I’d like to follow you if that would be ok.
    I’m definitely enjoying your blog and look forward to new updates.

    • December 15, 2013 at 11:12 pm

      I have not used twitter. My blog is all she wrote. Glad you enjoy it!

  7. December 23, 2013 at 6:56 am

    Have you ever considered about adding a little bit more than just your articles?
    I mean, what you say is valuable and all. Nevertheless
    imagine if you added some great graphics or video clips to give your
    posts more, “pop”! Your content is excellent but with images and clips, this site could certainly
    be one of the most beneficial in its niche. Superb blog!

  8. February 2, 2014 at 2:50 am

    I am curious to find out what blog system you’re using? I’m having some small security problems with my latest website and I would like to find something more risk-free.
    Do you have any suggestions?

    • February 2, 2014 at 5:14 pm

      I use word press but I am not sure if that is safer than any other blog system. I am sorry I do not have any good suggestions around this. Jon

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