On November 5, 2009 a lone gunman opened fire in the crowded Soldier Readiness Center at Fort Hood, where deploying soldiers were receiving vaccines. The gunman wore a combat uniform and shouted “Allahu Akbar” – or, “God is greatest” – as he fired rapidly at unarmed, startled soldiers. Within ten minutes, thirteen were dead and more than thirty injured. SWAT-team markswoman Kimberly Munley managed to shoot the lone gunman in the chest; he was handcuffed as he fell unconscious from the wound that, although not fatal, paralyzed him from the chest down. The gunman was quickly identified as U.S. Army Major Nidal Malik Hasan.
Hasan, a devout Muslim and a psychiatrist at Fort Hood, had been deeply distressed about his deployment to Afghanistan, scheduled for November 28th, because he believed, “You're not supposed to have alliances with Jews or Christian or others, and if you are killed in the military fighting against Muslims, you will go to hell.” Over the previous five years, Hasan had begun to openly oppose the wars because of his religion.
What was unclear in this case, however, was whether or not Hasan expected to wake up in a martyr’s paradise rather than a hospital bed. Considering the fact that Hasan gave away most of his possessions, including his furniture and copies of the Koran, on the morning of the shooting, it seems doubtful that he planned on surviving that fateful day. Whether or not he considered himself a religious martyr, however, was unclear. Was the shooting simply yet another case of workplace violence? Or of mental illness manifesting itself, unfortunately but arbitrarily, in the workplace? Or did Hasan feel backed into a corner, convinced he could not avoid deployment and equally unable to bring himself to fight fellow Muslims in Afghanistan? Or were Hasan’s actions part of some larger conspiracy or operation? Specifically, were they an act of terrorism? And to that point, does it make any difference in terms of how we deal with such incidents prospectively?
Background
Hasan was born on September 8, 1970 in Virginia to Palestinian parents who had emigrated from the West Bank in the 1960s. Hasan’s parents ran small businesses – a convenience store and two restaurants – which Hasan and his two brothers helped with until they left home for college and professional schools. Hasan was not a devout Muslim growing up, and so immediately after graduating high school, against the wishes of his parents, Hasan enlisted in the United States Army ROTC while attending Virginia Tech. According to a cousin, Hasan stated, “I was born and raised here, I’m going to do my duty to my country.” An aunt also said that the military “was his life.” In 1995, Hasan graduated from college with a bachelor’s degree in biochemistry and went on to receive training as a doctor at the Uniformed Services University of Health Sciences in Bethesda, Maryland.
Hasan’s uncle described him as “a gentle, quiet, deeply sensitive man,” even going so far as to describe a pet bird that Hasan had once owned, and which he fed by placing the bird in his mouth and offering it masticated food. When the bird died, Hasan apparently mourned it for months. One might think this anecdote explains his attraction to psychiatry. However, Hasan’s decision to become a shrink, rather than a surgeon, was prompted by an incident wherein he fainted while observing childbirth during medical training. He completed his residency in psychiatry at the Walter Reed Army Medical Center, where counseling and extra supervision were required for Hasan because he had some unexplained “difficulties,” according to training director Dr. Thomas Grieger.
Hasan’s parents died in 1998 and 2001, and in the years following their deaths he became increasingly devout and interested in the teachings of the Koran. During his senior year of residency at Walter Reed, Hasan gave a presentation titled “The Koranic World View As It Relates to Muslims in the U.S. Military,” which was not well received by many attendees. In his presentation Hasan recommended that the Department of Defense “should allow Muslims Soldiers the option of being released as ‘Conscientious objectors’ to increase troop morale and decrease adverse events” (citing “adverse events” such as Hasan Akbar’s 2003 murder of two officers at Camp Pennsylvania, Kuwait). He also came to the following conclusions:
• God expects full loyalty. Promises heaven and threatens with Hell.
• Muslims may be seen as moderate (compromising) but God is not.
• “I love the Koran and being a Muslim, but I don’t want to live under Islamic rule”.
• Fighting to establish an Islamic State to please God, even by force, is condoned by the Islam.
• Muslims Soldiers should not service in any capacity that renders them at risk to hurting/killing believers unjustly → will vary!
Due to this presentation and similar comments in which Hasan proselytized his radical ideas, some colleagues doubted Hasan’s commitment to the military. One graduate school classmate, Dr. Val Finnell, said that Hasan’s presentation “justified suicide bombing” (most likely referring to a slide titled “Comments,” which read: “If Muslim groups can convince Muslims that they are fighting for God against injustices of the ‘infidels’; i.e.: enemies of Islam, then Muslims can become a potent adversary i.e.: suicide bombing, etc.”) and was “anti-American propaganda”:
“He told students, ‘I'm a Muslim first and an American second,’” Dr. Val Finnell, now a lieutenant colonel at the Los Angeles Air Force Base, said in a telephone interview. “I really questioned his loyalty.”
Finnell said he first became suspicious of Hasan shortly after the program began when Hasan gave a provocative presentation in an environmental health class.
Other students focused on topics including mold and water contamination. Hasan's project asked "whether the war on terror is a war against Islam," Finnell said.
"It was very off-topic," Finnell said. "I raised my hand and said, 'What does this have to do with environmental health?'"
Finnell said Hasan became agitated when he was challenged and became "sweaty and nervous and emotional."
Finnell said he and his classmates never brought up Hasan's faith and never asked him about his views of the wars in Iraq and Afghanistan.
"If those topics came up in conversation, it was because he brought those things up," Finnell said. "It was a self-fulfilling prophecy. He made himself a lightning rod by making his extreme views known to everyone."
Finnell added he was shocked that someone exhibiting such beliefs was allowed to wear an officer’s uniform, but that no one filed a formal complaint against Hasan for fear of appearing discriminatory. He was not surprised that Hasan committed the Fort Hood shooting. He stated: “I had real questions about what his priorities were, what his beliefs were.”
Hasan grew increasingly vocal about his opposition to the wars in Iraq and Afghanistan, and he seemed to find it ever more difficult to reconcile military duties and religion. He occasionally complained of harassment, such as an incident in which someone drew a camel on his car and wrote beneath it, “Camel jockey, get out!” Furthermore, a cousin of Hasan’s claimed that Hasan was terrified of being deployed after having counseled so many returning soldiers who exhibited post-traumatic stress disorder.
Relatives said that Hasan retained a lawyer in an attempt to get discharged from the Army, but he believed it was impossible. The Army had paid for his education, was in need of mental health professionals, and was actively attempting to recruit Arab-Americans – he believed his chances of getting an early discharge were slim to nil. Indeed, Bernard Rostker, a military personnel expert at the Rand Corp., said that Hasan’s advancement from captain to major in 2008 was all but certain:
"We're short of officers, particularly at the major and lieutenant colonel level because of the war, and we're short of psychiatrists," said Rostker, who served as under secretary of defense for personnel and readiness during the Clinton administration. "There would have had to be something very detrimental in his record before there would have been a banner that would have said, 'No, we don't want to promote him.'"
Similarly, an investigation conducted by the Department of Defense found that although Hasan had “repeatedly failed to meet basic standards sets for officers for physical fitness, appearance and work ethic… superiors allowed his medical career to advance,” because, “supervisors were blinded by his resume, believing they had found a rare medical officer: someone with a stellar undergraduate record, prior service in the infantry and intimate knowledge of the Islamic faith…. ‘The Army thought it had hit the trifecta.’”
In 2001, Hasan began attending the Dar al-Hijrah mosque in the Falls Church area – a mosque also attended at the same time by two September 11 hijackers, Nawaf al-Hazmi and Hani Hanjour, and by Ahmed Omar Ali, a man convicted of providing material support to al-Qaeda and conspiring to assassinate President George W. Bush. At the time, the mosque’s imam was Anwar al-Awlaki, an Islamic lecturer and spiritual leader with ties to al-Qaeda.
Hasan clearly revered al-Awlaki’s teachings, and he sent al-Awlaki as many as twenty emails from December 2008 forward. In his emails, Hasan asked al-Awlaki when jihad is appropriate, and if it was acceptable to kill innocents in a suicide attack. He also wrote that he couldn’t wait to join al-Awlaki in the afterlife. In the months before the shooting Hasan discussed how to transfer funds abroad without coming to the attention of law authorities. A counter-terrorism specialist reviewed the emails at the time and proclaimed them innocuous. The emails were viewed as “general questions about spiritual guidance with regard to conflicts between Islam and military service… judged to be consistent with legitimate mental health research about Muslims in the armed services.”
However, Hasan had been an active anti-war presence on the Internet for years before his conversations with al-Awlaki. In one Internet posting titled “Martyrdom in Islam Versus Suicide Bombing,” Hasan compared a suicide bomber to a soldier who jumps on a grenade to save the lives of fellow officers in that both were sacrificing their lives “for a more noble cause.” This and other postings, however, were not definitively tied to Hasan at the time. After the Fort Hood shooting, al-Awlaki commended Hasan’s actions on his website, encouraging Muslims serving in the military to “follow in the footsteps of men like Nidal”:
Nidal Hassan is a hero. He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.... Any decent Muslim cannot live, understanding properly his duties towards his Creator and his fellow Muslims, and yet serve as a US soldier. The U.S. is leading the war against terrorism, which in reality is a war against Islam....
Nidal opened fire on soldiers who were on their way to be deployed to Iraq and Afghanistan. How can there be any dispute about the virtue of what he has done? In fact the only way a Muslim could Islamically justify serving as a soldier in the US army is if his intention is to follow the footsteps of men like Nidal.
The heroic act of brother Nidal also shows the dilemma of the Muslim American community.... The Muslim organizations in America came out in a pitiful chorus condemning Nidal’s operation.
The fact that fighting against the US army is an Islamic duty today cannot be disputed. No scholar with a grain of Islamic knowledge can defy the clear-cut proofs that Muslims today have the right—rather the duty—to fight against American tyranny. Nidal has killed soldiers who were about to be deployed to Iraq and Afghanistan in order to kill Muslims. The American Muslims who condemned his actions have committed treason against the Muslim Ummah and have fallen into hypocrisy...
Some investigators believe that Hasan’s conversations with Al-Awlaki were what prompted Hasan’s actions on November 5, 2009. If so, then Hasan is a classic case of Leaderless Resistance, ala Tim McVeigh (Chapter Two) and the ALF/ELF activists (Chapter Four).
The Shootings and the Legal Proceedings to Date
On the day of the shootings, at approximately 1:34 P.M. CST, Hasan entered the Soldier Readiness Center and sat down at a desk, bowed his head for a few moments, and opened fire, committing one of the worst mass killings at a U.S. military facility on record. The response to the shooting was deemed “prompt and effective” by the Department of Defense: “Just four minutes and 10 seconds after the first 911 call, the accused shooter was incapacitated and the rampage halted, according to the report”, but the damage was done, and everyone – both the military and the public – was left to question the motivation behind Hasan’s actions.
Speculation began immediately, with some citing Hasan’s fear of deployment, others his contact with Al-Awlaki. An anti-military activist, Selena Coppa, blamed the military itself, commenting, “This man was a psychiatrist and was working with other psychiatrists every day and they failed to notice how deeply disturbed someone right in their midst was.” U.S. Representative Michael McCaul of Austin Texas provided one of the most inflammatory remarks on record: “Whether it was domestic or foreign, clearly when a US military base is attacked in this fashion, that is an act of terror in my book.” Similarly, Senator Susan Collins of Maine and Homeland Security Committee ranking member, said, “I am convinced that terrorists are beginning to focus their efforts on smaller-scale attacks, with small arms and explosives such as we saw at Fort Hood, Arkansas, and in India.”
These comments beg the questions: Can Hasan’s actions be labeled terrorism? Are his actions evidence of a larger trend toward grassroots terrorist attacks?
Due to the huge amount of speculation following the shootings and the publicity surrounding the event, a complicated and lengthy trial process seems inevitable, and it seems questions of terrorism may never be satisfactorily addressed:
FORT WORTH — Complicated by a federal investigation into possible terrorist ties and the prospect of mental issues, the prosecution of Maj. Nidal Malik Hasan will likely be a lengthy and intricate process, military legal experts say.
Hasan has been identified by military officials as the lone suspect in the Fort Hood shootings last week that left 13 dead and more than 30 wounded — the deadliest mass shooting at a U.S. military installation.
A former Army staff judge advocate and military law expert at Texas Tech University suggests that it could take about two years to go to the military equivalent of a trial, depending on the defendant's health. And the outcome of the case would likely end up mired in complex appeals.
“We never had a case quite like this before… because of pretrial publicity, it will create a lot of complications,” said Richard Rosen, vice chairman of the university’s law school and former military justice attorney at Fort Hood.
Many factors will make the legal process challenging for prosecutors and defense attorneys: the number of witnesses, whether the actions were related to terrorism, mental capacity and the prospect of the death penalty. What may be the most difficult decision, military legal experts say, is whether the case will be tried at Fort Hood.
The convening authority in the case, which will be one of Hasan's commanders, could request a change of venue.
Still, Rosen said, Hasan could get a fair trial.
“There could be a lot of prejudice there and, because of the tremendous pretrial publicity, there could be pressure to move the case elsewhere," he said. "But experience has been that military jurors are an independent bunch. The military jurists are smart people. The officers will all be college-educated and people with advanced degrees.”
Hasan spent several days hospitalized and in a coma in Fort Sam Houston in San Antonio. When he finally awoke, he refused to speak to investigators and requested a lawyer, and was soon being represented by John P. Galligan, a criminal defense attorney and retired U.S. Army Colonel.
An Article 32 hearing was conducted and ended on November 15, 2010 (after a three week delay, as the defense did not want the hearing conducted during the anniversary of the shooting), wherein the defense team called no witnesses, later claiming that they had not received key government reports regarding the case. Several witnesses provided unsettling testimony for the military, however, and the 911 tape from the shooting was also played during the hearing:
To Fort Hood, Texas, now, where victims of last November's shooting rampage are giving gripping testimony about that attack. Major Nidal Hasan, an Army psychiatrist, is charged with 13 counts of murder and 32 counts of attempted murder. This hearing will determine whether he'll face a court martial. If found guilty, he could be executed.
NPR's Wade Goodwyn is at Fort Hood. And Wade, this is the first time we've heard from victims of what was, obviously, a terrifying ordeal. Tell me a little bit about who we heard from today.
WADE GOODWYN: Well, the first witness was a 6-foot-9 non-commissioned officer, Sergeant Alonzo Lunsford. That day, Major Nidal Hasan was being processed, getting ready to deploy overseas. The processing center was packed with hundreds of soldiers.
Lunsford saw Hasan stand, walk to the front of the room, pull out a laser-sighted pistol, yell Allahu Akbar and open fire. It was quick and steady bam, bam, bam.
[POST-BROADCAST CORRECTION: Michael Cahill was incorrectly referred to as a doctor. He was a physician assistant.]
A doctor, 64-year-old Michael Cahill, came out from one of the examination rooms, picked up a chair by the legs and advanced on Hasan, but he was shot and killed by Hasan before he could get there.
After that, Lunsford decided to make a break for the back door, but Hasan spotted him. And Lunsford testified that he saw the laser sight rake across his face, and then Hasan shot him in the left eye. But the sergeant was able to get up and make a run for the back door again. But Hasan followed him out and began shooting in his direction. And the bravery that was exhibited this day was amazing
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Two soldiers saw what was happening. They ran toward the shooter to come to Lunsford's aid. They threw their bodies over the sergeant, and then they grabbed a tarp and dragged the 6-foot-9 Lunsford behind a truck. He was shot five times - once in the head, four shots to the body - but he lived to give absolutely riveting testimony today.
KELLY: Wow, it sounds like riveting but awful testimony today. And I understand Major Hasan himself was there. He was shot and paralyzed, but I understand he was there today. What was his reaction; could you tell?
GOODWYN: Well, he reacted mostly to Sergeant Lunsford's testimony. I mean, they locked eyes several times. But mostly, Hasan kind of stared unseeing into the distance, not wanting to engage.
KELLY: What kind of defense are Major Hasan and his lawyers mounting?
GOODWYN: Well, given the kind of eyewitness testimony, you know, there's not a whole lot they can do. They're trying to focus on avoiding the death penalty, and trying to build some sort of foundation for mitigating circumstances. But it was really hard for me to see, during their cross-examinations, how they were helping him much. I don't think they were today, very much.
KELLY: Oh, that strategy's still unfolding. One other piece of testimony I want to ask you about, and that's a piece of 911 tape that was played in today's hearing.
GOODWYN: Yes, Michelle Harper was a blood lab technician. She was hiding under the reception desk. Several others piled on top of her. She called 911, and was on the phone with the operator for 13 minutes.
And it was horrible. I mean, you can hear screaming and crying. The moaning of a dying soldier next to her is clearly audible. And for it was just too much for Harper. She hung her head and began to sob uncontrollably during the playing of the tape.
The judge had to stop the proceedings and remove her so they could continue to play the tape, and then they brought her back to complete the testimony. It was all in all, a pretty amazing morning.
Under the Uniform Code of Military Justice, Hasan was charged with thirteen counts of premeditated murder and thirty-two counts of attempted premeditated murder. Colonel James L. Pohl presided over the hearing and also recommended a general court martial for Hasan, and the investigating officer recommended that the military pursue the death penalty. Around December 10, 2010 Hasan began a mental evaluation that will determine if he is competent to stand trial.
But none of that answers the question of whether or not Hasan can be labeled a terrorist, and it’s uncertain if anything ever will. Hasan was given instructions by his lawyer not to speak to investigators about his motivation, and it’s unclear whether anything will be revealed during the trial other than Hasan’s mental state during the shooting: “‘If people want to know about some overarching conspiracy to attack the United States, I'm not sure if that will come out [in a trial],’ says Richard Rosen, a former staff judge advocate at Fort Hood and currently a law professor at Texas Tech. ‘We're more likely to hear about his state of mind when he committed the murders.’”
Though some believe the Fort Hood shooting to be the “first international terror attack on American soil since 9/11,” Hasan’s defense is gearing up to paint the attack as a spontaneous act, the desperate actions of a mentally ill man. Despite Hasan’s contact with al-Awlaki prior to the attack, an FBI investigators found that Hasan had apparently acted alone, without outside help or direct orders from al-Awlaki or anyone else to commit the attack on Fort Hood. However, investigators stressed that those were preliminary findings from the early stages of the investigation, which is ongoing.
However, the trial itself could go in any number of directions, and right now it is impossible to say how much will be revealed.
Every day our definition of terrorism is changing, though, and Hasan may or may not become a part of that shifting definition:
"I used to argue it was only terrorism if it were part of some identifiable, organized conspiracy," says Bruce Hoffman, a terrorism expert at Georgetown University. But Hoffman has changed his definition, he says, because "this new strategy of al-Qaeda is to empower and motivate individuals to commit acts of violence completely outside any terrorist chain of command." Every month this year, he notes, there has been a terrorist event — either an act committed or one broken up before it could be carried out. "The nature of terrorism is changing, and Major Hasan may be an example of that," Hoffman argues. "Even if he turns out to have had no political motive, this is a sea change."
If "leaderless resistance" is the wave of the future, it may be less lethal but harder to fight; there are fewer clues to collect and less chatter to hear, even as information about means and methods is so much more widely dispersed. It is more like spontaneous combustion than someone from the outside lighting a match. Senator Joe Lieberman's Homeland Security Committee warned of this threat in a report last year. "The emergence of these self-generated violent Islamist extremists who are radicalized online presents a challenge," the report concluded, "because lone wolves are less likely to come to the attention of law enforcement." At least until they start shooting.
It might help if there were at least agreement on what constitutes terrorism; one government study found 109 different definitions. As far as the FBI is concerned, it counts as terrorism if you commit a crime that endangers another person or is violent with a broader intent to intimidate, influence or change policy or opinion. If Hasan shot people because of indigestion, worker conflict or plain insanity without a larger goal of intimidation or coercion, it was probably just a crime. If, on the other hand, his crime was motivated by more than madness — say, a desire to protest U.S. foreign policy — it was effectively terrorism.
So what are we to make of the free agents who might have never sworn allegiance to a band of jihadist brothers or plotted a conspiracy of violence, just watched some YouTube videos or downloaded some sermons and came away with visions of carnage dancing in their heads? "We have to be careful not to let our definition of terrorism become too broad," said former Homeland Security Secretary Michael Chertoff last year. "Particularly when we get to the individual lone wolf, then it really does become hard to distinguish between the person who killed the students at Virginia Tech and the person who might do the same thing simply because they read something on the Internet about bin Laden and that happened to appeal to their psychology." Once everything is terrorism, he warned, then nothing is. But while the motivations of the Virginia Tech gunman seemed perversely personal, Hasan had spent years telling anyone who would listen that the U.S. war effort in Iraq and Afghanistan was immoral.
Hasan’s trial was pending as this book went to press.
Anwar al-Awlaki and the Yemeni Connection
Al-Awlaki was born April 22, 1971 in Las Cruces, New Mexico. He is a dual citizen of the U.S. and Yemen. If he had a resume, it might identify him as an Islamic lecturer, spiritual leader, and former imam, who has inspired Islamic terrorists against the West. According to U.S. officials, he is a “senior talent recruiter and motivator,” who has also become “operational” as a planner and trainer, "for al-Qaeda and all of its franchises". The U.S. Under Secretary of the Treasury for Terrorism and Financial Intelligence warned that al-Awlaki "is extraordinarily dangerous, committed to carrying out deadly attacks on Americans and others worldwide". With a blog, a Facebook page, and many YouTube videos, he has been described as the "bin Laden of the Internet".
Al-Awlaki's sermons were attended by three of the 9/11 hijackers. He reportedly met privately with two of them in San Diego. One moved from there to Falls Church, Virginia, as al-Awlaki moved. Investigators suspect al-Awlaki may have known about the 9/11 attacks in advance. In 2009, he was promoted to the rank of "regional commander" within al-Qaeda, according to U.S. officials.
As noted above, his sermons were also attended by accused Fort Hood shooter Nidal Malik Hasan. U.S. intelligence intercepted at least 18 emails between Hasan and al-Awlaki in the months prior to the Fort Hood shooting, including one in which Hasan wrote: "I can't wait to join you [in the afterlife]." After the shooting, al-Awlaki praised Hasan's actions. In addition, "Christmas Day bomber" Umar Farouk Abdulmutallab said al-Awlaki was one of his al-Qaeda trainers, who met with him and was involved in planning or preparing his attack, and provided religious justification for it, according to U.S. officials. In March 2010, al‑Awlaki said in a videotape that jihad against America was binding upon every able Muslim.
Shortly after the Fort Hood shootings, news sources revealed that the rogue cleric had escaped to Yemin, apparently due to police incompetence. According to ABC News, “A felony arrest warrant for radical Islamic cleric Anwar al Awlaki was rescinded in 2002 a day before he was intercepted as a terror suspect at New York's JFK airport, forcing authorities to release him, according to sources familiar with the case. The warrant was cancelled by the U.S. Attorney's Office in Denver, even though Awlaki was on a terror watch list, and even though the office's supervising prosecutor for terror cases -- who has now been appointed by the Obama administration as the U.S. Attorney in Denver -- had been fully briefed on Awlaki's alleged terror ties, according to investigators.”
As Awlaki’s connections to other would-be terrorists, such as the Times Square Bomber (Chapter Ten), became increasingly apparent, the Obama administration placed him on its “targeting shooting” list. This in turn led to a lawsuit brought by the American Civil Liberties Union and the Center for Constitutional Rights on August 30, 2010.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NASSER AL-AULAQI, on his own behalf and as Next Friend of
Anwar Al-Aulaqi,
Al-Zubairi Street
Al-Saeed Center Sana’a,
Yemen,
Plaintiff, v.
BARACK H. OBAMA, in his official capacity as President of
the United States 1600 Pennsylvania Avenue NW Washington, DC 20500;
LEON C. PANETTA, in his official capacity as Director of
the Central Intelligence Agency Central Intelligence Agency Washington, DC 20505;
ROBERT M. GATES, in his official capacity as Secretary of Defense 1000 Defense Pentagon Washington, DC 20301-1010,
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Violation of constitutional rights and international law – targeted killing)
INTRODUCTION
1. This case concerns the executive’s asserted authority to carry out “targeted killings” of U.S. citizens suspected of terrorism far from any field of armed conflict. According to numerous published reports, the government maintains lists of suspects— “kill lists”—against whom lethal force can be used without charge, trial, or conviction. Individuals, including U.S. citizens, are added to the lists based on executive determinations that secret criteria have been satisfied. Executive officials are thus invested with sweeping authority to impose extrajudicial death sentences in violation of the Constitution and international law.
2. The right to life is the most fundamental of all rights. Outside the context of armed conflict, the intentional use of lethal force without prior judicial process is an abridgement of this right except in the narrowest and most extraordinary circumstances.
3. The United States is not at war with Yemen, or within it. Nonetheless, U.S. government officials have disclosed the government’s intention to carry out the targeted killing of U.S. citizen Anwar Al-Aulaqi, who is in hiding there. In early 2010, several newspapers reported that U.S. government officials had confirmed Anwar Al- Aulaqi’s placement on government kill lists; these lists amount to standing authorizations to use lethal force. Numerous subsequent reports have corroborated those accounts. According to one media report, there have already been as many as a dozen unsuccessful attempts on Anwar Al-Aulaqi’s life. Anwar Al-Aulaqi has been in hiding since at least January 2010. Plaintiff Nasser Al-Aulaqi is Anwar Al-Aulaqi’s father; he brings this action on his own behalf and as next friend to his son.
4. Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury. The summary use of force is lawful in these narrow circumstances only because the imminence of the threat makes judicial process infeasible. A targeted killing policy under which individuals are added to kill
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lists after a bureaucratic process and remain on these lists for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.
5. The government’s refusal to disclose the standard by which it determines to target U.S. citizens for death independently violates the Constitution: U.S. citizens have a right to know what conduct may subject them to execution at the hands of their own government. Due process requires, at a minimum, that citizens be put on notice of what may cause them to be put to death by the state.
6. Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death.
JURISDICTION AND VENUE
7. Jurisdiction is proper pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) over causes of action arising under the Fourth and Fifth Amendments to the U.S. Constitution, and 28 U.S.C. § 1350 (Alien Tort Statute) over a cause of action arising under customary international law and treaty law. Jurisdiction is also proper pursuant to 5 U.S.C. § 702 et seq. (Administrative Procedure Act) and 28 U.S.C. § 2201 et seq. (Declaratory Judgment Act).
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8. Venue is proper in this district pursuant to 28 U.S.C. § 1391.
PARTIES
9. Plaintiff Nasser Al-Aulaqi is the father of Anwar Al-Aulaqi, a U.S. citizen whose targeted killing Defendants have authorized. Nasser Al-Aulaqi is a citizen and resident of Yemen. He acts on his own behalf and as next friend to his son. He acts in the latter capacity because his son is in hiding under threat of death and cannot access counsel or the courts to assert his constitutional rights without disclosing his whereabouts and exposing himself to possible attack by Defendants. He brings the Alien Tort Statute claim on his own behalf to prevent the injury he would suffer if Defendants were to kill his son.
10. Defendant Barack H. Obama is President of the United States. As President, he is Commander-in-Chief of the U.S. armed forces and serves as Chair of the National Security Council, which authorizes the targeted killing of suspected terrorists who are U.S. citizens. President Obama is sued in his official capacity.
11. Defendant Leon C. Panetta is the Director of the Central Intelligence Agency (“CIA”). As CIA Director, he has ultimate authority over the CIA’s operations worldwide. Upon information and belief, Defendant Panetta approves the addition of individuals to the kill list maintained by the CIA, and signs off on individual targeted killing operations conducted by the CIA outside of armed conflict, including those against U.S. citizens. Director Panetta is sued in his official capacity.
12. Defendant Robert M. Gates is the Secretary of Defense. As Defense Secretary, he has ultimate authority over the U.S. armed forces worldwide, including the
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Joint Special Operations Command (“JSOC”). Upon information and belief, JSOC is involved in carrying out targeted killings, including of U.S. citizens outside of armed conflict. In his capacity as Secretary of Defense, Defendant Gates is also a statutory member of the National Security Council, which authorizes the targeted killing of U.S. citizens. Secretary Gates is sued in his official capacity.
FACTUAL ALLEGATIONS
Targeted Killings by the United States Outside of Armed Conflict 13. Since 2001, the United States has carried out targeted killings in
connection with the “war on terror.” While many of these killings have been conducted by the U.S. military in the context of the armed conflicts in Afghanistan and Iraq, the United States has also carried out targeted killings outside the context of armed conflict, and it is these killings that are at issue here. Upon information and belief, both the CIA and JSOC are involved in authorizing, planning, and carrying out targeted killings, including of U.S. citizens, outside the context of armed conflict.
14. 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 suspected terrorist traveling in a car with other passengers. The strike killed all passengers in the vehicle, including a U.S. citizen. The United Nations Special Rapporteur on Extrajudicial Killings later stated that the strike constituted “a clear case of extrajudicial killing” and set an “alarming precedent.” Since 2001, there has been an increase in targeted killings by the United States against terrorism suspects outside of Afghanistan and Iraq.
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15. The government has publicly claimed the authority to carry out targeted killings of civilians, including U.S. citizens, outside the context of armed conflict. For example, in February 2010, then-Director of National Intelligence Dennis Blair, in response to a question by a member of Congress about the targeted killing of U.S. citizens, stated that the United States takes “direct action” against suspected terrorists and that “if we think that direct action will involve killing an American, we get specific permission to do that.” In June 2010, Deputy National Security Advisor John Brennan responded to questions about the targeted killing program by stating, “If an American person or citizen is in Yemen or in Pakistan or in Somalia or another place, and they are trying to carry out attacks against U.S. interests, they will also face the full brunt of a U.S. response.”
16. Although the government has publicly claimed the authority to carry out targeted killings of civilians outside the context of armed conflict, it has not explained on what basis individuals are added to kill lists, or the circumstances in which the asserted authority to carry out targeted killings will actually be exercised.
Specific Authorization to Kill Plaintiff’s Son Anwar Al-Aulaqi
17. Plaintiff Nasser Al-Aulaqi moved to the United States in 1966 to pursue his studies as a Fulbright scholar at New Mexico State University. Plaintiff’s son, Anwar Al-Aulaqi, was born in New Mexico in 1971. Plaintiff remained in the United States with his family for the next seven years, until 1978, when they moved back to Yemen. Plaintiff went on to serve as Minister of Agriculture and Fisheries in the Government of Yemen, and later founded and served as president of Ibb University and served as
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president of Sana’a University. Plaintiff currently resides in Yemen with his wife, who is an American citizen, and their family.
18. In 1991, Plaintiff’s son Anwar Al-Aulaqi returned to the United States to attend college at Colorado State University. Anwar Al-Aulaqi went on to obtain his master’s degree at San Diego State University and later enrolled in a Ph.D. program at George Washington University, which he attended through December 2001. He married and had three children while living in the United States. He moved to the United Kingdom in 2003, and to Yemen in 2004.
19. In January 2010, the Washington Post reported that Anwar Al-Aulaqi had been added to “a shortlist of U.S. citizens” that JSOC was specifically authorized to kill. The same article reported that Anwar Al-Aulaqi had survived a JSOC-assisted strike in Yemen in late December 2009. That strike reportedly killed 41 civilians, mostly children and women. Another January 2010 news report stated that Anwar Al-Aulaqi was “all but certain” to be added to a list of suspects that the CIA was specifically authorized to kill. In April 2010, the Washington Post and other media sources reported that Anwar Al- Aulaqi had been added to the CIA’s list.
20. Numerous news reports have corroborated that Defendants have authorized the targeted killing of Anwar Al-Aulaqi and are actively pursuing him. According to one media report, he has already been the target of as many as a dozen unsuccessful strikes. One U.S. official stated that “he’s in everybody’s sights.” In the context of a discussion about targeted killing, Defendant Panetta stated that Anwar Al-
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Aulaqi is “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.”
21. Defendants added Anwar Al-Aulaqi to the CIA and JSOC kill lists after a closed executive process. In the course of that process, Defendants and other executive officials determined that Anwar Al-Aulaqi satisfied secret criteria that determine whether a U.S. citizen can be killed by his own government. Upon information and belief, Anwar Al-Aulaqi is now subject to a standing order that permits the CIA and JSOC to kill him. Upon information and belief, the authorization for Anwar Al-Aulaqi’s killing by the CIA and JSOC involved the approval or recommendation of all Defendants.
22. Upon information and belief, individuals placed on the CIA and JSOC targeted killing lists remain on those lists for months at a time. An intelligence official who was questioned about the CIA’s kill list stated that individuals would be removed from the kill list if their names “hadn’t popped on the screen for over a year, or there was no intelligence linking [them] to known terrorists or plans.”
23. Upon information and belief, Defendants have authorized the CIA and JSOC to kill Anwar Al-Aulaqi without regard to whether, at the time lethal force will be used, he presents a concrete, specific, and imminent threat to life, or whether there are reasonable means short of lethal force that could be used to address any such threat.
24. Executive officials have condemned Anwar Al-Aulaqi’s public statements and sermons; they have also alleged that he has “cast his lot” with terrorist groups and taken on an “operational” role in a terrorist organization. The U.S. government has not, however, publicly indicted Anwar Al-Aulaqi for any terrorism-related crime.
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25. In response to reports that the United States has placed Anwar Al-Aulaqi on kill lists, Yemeni officials, including the Prime Minister, the Foreign Minister, and the Director of the National Security Agency, have publicly stated that their government’s security forces are taking measures to arrest Anwar Al-Aulaqi for possible charge and trial. Yemeni cabinet members have also publicly requested that the United States provide the Yemeni government with any evidence against Anwar Al-Aulaqi to support arresting him and bringing him to trial. The Yemeni government has prosecuted other residents of Yemen for terrorism-related crimes, and the Yemeni government is currently prosecuting at least one U.S. citizen who is alleged to be a member of a terrorist organization. Anwar Al-Aulaqi has in the past been detained by the Yemeni government and was imprisoned for 18 months in 2006 and 2007.
26. Anwar Al-Aulaqi has been in hiding in Yemen since at least January 2010. Plaintiff has had no communication with his son during that time. Anwar Al-Aulaqi cannot communicate with his father or counsel without endangering his own life.
CAUSES OF ACTION
First Claim for Relief Fourth Amendment: Right to be Free from Unreasonable Seizure
27. Defendants’ policy of targeted killings violates the Fourth Amendment by authorizing, outside of armed conflict, the seizure, in the form of targeted killing, of U.S. citizens, including Plaintiff’s son, in circumstances in which they do not present concrete, specific, and imminent threats to life or physical safety, and where there are means other than lethal force that could reasonably be employed to neutralize any such threat. Plaintiff brings this claim as next friend for his son.
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Second Claim for Relief Fifth Amendment: Right Not to be Deprived of Life Without Due Process
28. Defendants’ policy of targeted killings violates the Fifth Amendment by authorizing, outside of armed conflict, the killing of U.S. citizens, including Plaintiff’s son, without due process of law in circumstances in which they do not present concrete, specific, and imminent threats to life or physical safety, and where there are means other than lethal force that could reasonably be employed to neutralize any such threat. Plaintiff brings this claim as next friend for his son.
Third Claim for Relief Alien Tort Statute: Extrajudicial Killing
29. Defendants’ policy of targeted killings violates treaty and customary international law by authorizing, outside of armed conflict, the killing of individuals, including Plaintiff’s son, without judicial process in circumstances in which they do not present concrete, specific, and imminent threats to life or physical safety, and where there are means other than lethal force that could reasonably be employed to neutralize any such threat. Plaintiff brings this claim in his own right to prevent the injury he would suffer if Defendants were to kill his son.
Fourth Claim for Relief Fifth Amendment: Due Process Notice Requirements
30. Defendants’ policy of targeted killings outside of armed conflict violates the Fifth Amendment by authorizing the killing of U.S. citizens, including Plaintiff’s son, on the basis of criteria that are secret. Plaintiff brings this claim as next friend for his son.
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PRAYER FOR RELIEF
For the foregoing reasons, Plaintiff Nasser Al-Aulaqi requests that the Court:
a. Declare that, outside of armed conflict, the Constitution prohibits Defendants from carrying out the targeted killing of U.S. citizens, including Plaintiff’s son, except in circumstances in which they present concrete, specific, and imminent threats to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threats.
b. Declare that, outside of armed conflict, treaty and customary international law prohibit Defendants from carrying out the targeted killing of individuals, including Plaintiff’s son, except in circumstances in which they present concrete, specific, and imminent threats to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threats.
c. Enjoin Defendants from intentionally killing U.S. citizen Anwar Al-Aulaqi unless he presents a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat.
d. Order Defendants to disclose the criteria that are used in determining whether the government will carry out the targeted killing of a U.S. citizen.
e. Grant any other and further relief as is appropriate and necessary.
Respectfully submitted, 11
August 30, 2010
/s/ Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union of the Nation’s Capital 1400 20th Street, N.W., Suite 119 Washington, DC 20036
Tel. 202-457-0800 Fax 202-452.1868 artspitzer@aol.com
Jameel Jaffer (to be admitted pro hac vice) Ben Wizner (to be admitted pro hac vice) Jonathan M. Manes American Civil Liberties Union Foundation 125 Broad Street, 18th Floor
New York, NY 10004 (212) 519-7814 jjaffer@aclu.org
Pardiss Kebriaei (to be admitted pro hac vice) Maria C. LaHood (to be admitted pro hac vice) William Quigley Center for Constitutional Rights
666 Broadway, 7th floor New York, NY 10012 (212) 614-6452 pkebriaei@ccrjustice.org
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Thus, as the trial of the Fort Hood killer hangs fire, the man who allegedly inspired Hasan’s heinous acts is suing Uncle Sam in an effort to avoid the U.S. government’s righteous wrath. One might reasonably observe that only in American can the legal process seemingly be so radically turned on its head.
On the other, if indeed no person may “be deprived of life, liberty, or property, without due process of law,” then the U.S. government arguably ought not to be targeting even the worst suspects for summary execution.
As with Jose Padilla’s incarceration(Chapter Seven), the targeting of Awlaki (or Al-Aulaqi, as the complaint calls him) tests yet again the boundaries of the federal government’s police and war powers in light of the U.S. Constitution. And, as I argued in the Preface, ours is not an over-lawyered society. To the contrary, given that Awlaki has not personally pulled a trigger or pressed a detonator button --- but, rather, has incited illegal acts, as did the ALF activists tried earlier in the decade in Trenton (NJ)(see Chapter Four) --- he perhaps ought to be captured, extradited and tried, just as they were.
This pending suit will test this theory, and in the process test us as a civil society ostensibly committed to civil liberties and fair play.
For its part, the government on September 24, 2010, moved to dismiss, raising a range of fundamental defenses:
Defendants Barack H. Obama, President of the United States, Leon E. Panetta, Director of the Central Intelligence, and Robert M. Gates, Secretary of Defense, hereby move to dismiss Plaintiff’s complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), on the grounds that Plaintiff lacks standing and that his claims require the Court to decide non-justiciable political questions. Alternatively, the Court should exercise its equitable discretion not to grant the relief sought. In addition, Plaintiff has no cause of action under the Alien Tort Statute.
To the extent that the foregoing are not sufficient grounds to dismiss this lawsuit, plaintiff’s action should be dismissed on the ground that information properly protected by the military and state secrets privilege would be necessary to litigate this action.
Stripped of its legal jargon and boiled down to its essence, the motion contends that the federal judge has no business poking a judicial nose into the secret doings of the Department of Defense and the CIA. Time will tell.
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