The Obama administration’s targeted drone strikes against American citizens were constitutional in part because the president said so, Department of Justice lawyers argued in a court filing in June.
“The Attorney General’s statement last month that the use of remotely piloted aircraft and the targeting of Anwar Al-Aulaqi were subject to ‘exceptionally rigorous interagency legal review’ and determined to be lawful — along with the President’s statement that those actions were legal — only support the conclusion that those actions were lawful, and certainly were not clearly established to be unconstitutional in 2011," the government said in a Wednesday court filing signed by Paul E. Werner, a trial lawyer in the Justice Department’s Civil Division.
The government was responding to a lawsuit filed by the American Civil Liberties Union and the Center for Constitutional Rights on behalf of the estates of three American citizens killed in drone strikes. The lawsuit, Al-Aulaqi v. Panetta, alleges that the government’s killing of Al-Aulaqi and his 16-year-old son, Abdulrahman Al-Aulaqi, and Samir Khan were unconstitutional because they were not given due process.
The administration’s court filing also claimed that the government deserved qualified immunity because the plaintiffs “failed to allege the violation of any clearly established constitutional rights.” The government maintained that neither Attorney General Eric Holder’s letter to members of Congress nor Obama’s speech on national security had any effect on its legal posture in the case even though it was the first time the government formally acknowledged it had killed the American citizens. The previously classified information disclosed by Obama and Holder is “wholly consistent with Defendants’ showing that Anwar Al-Aulaqi’s due process rights were not violated,” the government said.
The judicial branch, the Obama administration argued, “is ill-suited” to evaluate the myriad “military, intelligence, and foreign policy considerations” that went into the decision to kill the American citizens. The government also argued that because Khan and Abdulrahman Al-Aulaqi were not specifically targeted by the government, they cannot claim they were subjected to an unconstitutional process.