07/19/12 – Nathan Wessler – The Scott Horton Show

All right, y'all, welcome back to the show.
I'm Scott Horton, and our next guest is Nathan Wessler.
He is the National Security Fellow in the ACLU's National Security Project.
He's been involved in litigation of cases concerning detainees held at Guantanamo Bay and at Bagram, Afghanistan.
He also worked on FOIA cases related to targeted killings of individuals using unmanned drones and the treatment of indefinite detention of individuals in U.S. custody.
All right, great.
Welcome to the show, Nathan.
How are you doing?
I'm well, thank you.
Well, you're welcome.
I'm very happy to have you here.
Appreciate you joining us.
So now, you guys at the ACLU and the Center for Constitutional Rights have this brand-new lawsuit about the targeted killings going way beyond the FOIA here.
It's al-Awlaki versus Panetta.
So if I understand right, this would be the grandfather, right?
The father of Anwar al-Awlaki and his family are suing over the murder of their son and grandson by Barack Obama?
Right.
So we represent two families.
We represent the al-Awlaki family, Nasser al-Awlaki, who's the father of Anwar al-Awlaki, and the grandfather of Abdulrahman al-Awlaki, who is a 16-year-old boy, a U.S. citizen, who was killed in a drone strike in Yemen in October of last year.
And then we also represent the mother of Samir Khan, a U.S. citizen, who was killed in a drone strike in Yemen at the end of September last year.
So this suit is really about the broad principle that when the government is killing its own citizens, it has the obligation to explain what it's doing and to observe the Constitution's guarantee of due process.
And we allege on behalf of these families that it failed to do that when it killed these three U.S. citizens last year.
And now, so necessarily, legal-wise, this is not, you're not suing over the drone program, the assassination program in general.
These are very specific cases, right?
That's right.
We're representing these specific clients about two drone strikes in particular, but we are raising concerns that apply to the entire targeted killing program, concerns about how the U.S. government is not limiting its use of lethal force to the very narrow circumstances where the Constitution and international law allow it.
So outside of the context of an armed conflict, off of an active battlefield, the government's only allowed to use lethal force against people who pose a concrete, specific, and imminent threat.
That's a very narrow standard, and the government simply has not presented evidence that that was what it was doing in these cases.
Even in an armed conflict, and there was no armed conflict between the U.S. and any group or entity in Yemen at the time of these killings, but even if there were, as the government argues, there are still strict limits on who can be targeted, only people who are directly participating in those hostilities.
And regardless of the legal framework, the government has a very strict obligation to protect civilian bystanders from harm.
In these killings, the government was deliberately targeting, after placing him on a kill list for several years, Anwar al-Awlaki, and then by all accounts, they were not specifically targeting the other two U.S. citizens, Samir Khan and 16-year-old Abdulrahman, but they killed them nonetheless in the course of these two drone strikes.
So those three killings, for slightly different reasons, all violate the Constitution and international law.
Alright, now, I want to make sure I understand you right, because I'm not sure I did actually.
When you talk about the concrete, specific, and imminent threat, you're saying that's off a battlefield.
If it's World War II and an American is camping with the Germans, go ahead and hit him with artillery, no problem.
But if he's off the battlefield, then he has to be coming at you with a bayonet to go ahead and kill him.
Is that what you're saying?
He has to be literally in self-defense at the moment.
Yes, that's right.
It's an imminent standard, and the government's definition of imminent that it has gestured at in a couple of public speeches by high-level officials is just far too broad to fit inside the well-established legal framework.
It has to be a concrete and specific threat that's likely to come to fruition in the very near future.
You can't be killing somebody for activity they undertook far in the past or for some vague belief that they may do something in the future.
It really is limited, and it's important because there's a real risk of error when the government uses lethal force.
The danger of dispensing with due process and making these kinds of closed decisions to kill people without any transparency and no public process should really be obvious.
Over the last decade, the government has repeatedly labeled men terrorists, detained them at Guantanamo Bay and elsewhere, only to find out later or to be told by a federal judge that the evidence was overstated, the evidence was wrong, or it was nonexistent, and that they had the wrong person or the person they had didn't actually pose a threat.
Now, in the context of detention, there's the opportunity to go to a court and for the government's mistake to be corrected, but there is no legal recourse from a drone for the person who's been killed.
That's the end of the story for them.
The New York Times, it says that you can be posthumously found innocent.
Well, that's right.
The standard that the government is using to determine who's a legitimate target also appears to be a violation of the law.
The New York Times, as you note, wrote an article pretty recently that the government considers all military-age men within a strike zone to be militants, unless there's evidence proving them innocent after they're already dead, posthumous evidence.
That's a shoot-first-and-ask-questions-later policy that is just completely inconsistent with the Constitution's guarantee of due process.
Well, as you said, too, this is sort of how at least they claim al-Awlaki's son was killed.
They weren't targeting him, but, oh, well, he was just collateral damage, but there's every reason to believe they knew he was there.
They went ahead and killed him anyway.
Well, there's very little public information about that strike.
Part of what we seek in this lawsuit, as well as in our Freedom of Information Act lawsuit, is accurate information from the government about what happened there.
Shortly after he was killed, newspapers reported, based on statements of anonymous officials, that he was a military-age male or a militant in his 20s.
It was only after his family, his grandfather, released a copy of his birth certificate, his United States birth certificate, from Denver, Colorado, to the Washington Post, that anonymous government officials acknowledged in the media that, in fact, he was a minor.
He was only 16 years old at the time.
So there are real serious questions about whether the government knew he was there, whether it took the proper precautions to avoid killing a child, and what it was doing in this drone strike.
You know, it's funny, because this is just the most basic principle.
It might as well be in the Pledge of Allegiance.
You have a fair trial, because it could be you.
What if somebody accused you, but it wasn't true?
You've got to have a chance to explain, or at least try to cast doubt on what they're saying about you.
And if a child murderer gets a fair trial, no pun intended with Barack Obama and his administration here, but I mean a regular civilian kills another civilian, we still give him a trial.
We don't say that what that person did is so bad that they don't even get a trial.
We have to make sure they're the one who did it.
Before we punish them, that's what the trial is for.
And for us to forsake this principle when it comes to quote-unquote U.S. persons, American citizens, here or abroad, or any foreigner here in the United States, it's just incredible that we're losing these protections with hardly a whimper at all.
It's just incredible.
It's absolutely right.
You know, we don't want to minimize that the government has made serious allegations against Admiral Al-Awlaki.
They're serious allegations, and there may well be evidence backing them up.
But ultimately, they're allegations.
They're not evidence.
And the entire function of our judicial system in this country is to distinguish actual evidence from those kind of mere allegations.
That's the whole point of the Due Process Clause, the whole point of this constitutional set of protections that we all rely on.
Well, you know, the thing is, too, is they've admitted that they were lying, too.
I mean, they told the Washington Post that we have reason to believe that he may have ties, too.
And that was anonymously, hiding behind anonymity.
That was the worst they were willing to say about him.
We think he may have been in the room when someone else was on the phone with the underpants bomber or this kind of nonsense.
And, you know, they killed him because he was an effective propagandist, and we all know that.
But hang on one second.
We'll be right back with Nathan Wessler from the ACLU.
They're suing Obama for murdering American citizens.
All right, y'all.
Welcome back.
I'm Scott Horton.
I'm talking with Nathan Wessler from the American Civil Liberties Union.
Thank goodness for them.
They wake up in the morning, they sue the government all day.
And without them, just think of the horrid police state we would already be in the, you know, worst pit of.
We're on our way, but they're slowing our descent with moves like this, suing Barack Obama over the assassination of Anwar al-Awlaki and his son and Samir Khan, who is another American citizen.
There's collateral damage over there.
And I'm sorry, I forget, Nathan, where exactly we left off before the break here.
Well, you know, I think an important point to make is that, you know, there's been relatively muted public outcry about the Obama administration's targeted killing program over the past couple of years.
But I just want to, you know, point out that if the Bush administration had been doing the same thing, operating a targeted killing program that resulted in the death of thousands of people around the world, including, by all reputable accounts, many hundreds of civilians, based on vague legal standards, a closed executive process, evidence that's never made public, and not limited to actual battlefields, Americans would be reacting with alarm.
You know, during the Bush administration, Americans rightly reacted with alarm when President Bush asserted the right to wiretap homes without judicial review, when he asserted the right to detain Americans as enemy combatants without judicial review.
And Americans really should be similarly alarmed and concerned by the Obama administration's claim that it can kill Americans without judicial review.
If President Bush had proposed this policy, it's really inconceivable that the public would have accepted it.
Well, and, you know, I forget now if it was John Brennan, or I think it was Dennis Blair, who was the head of the National Intelligence Director, I guess they called him at the time, who said, not that there were more than a dozen Americans actually on the hit list, but that there are a dozen Americans who qualify as enemies that they could be on the hit list, basically, I think is what he said.
Is that about right?
Well, I don't know about that number.
There certainly was reporting around the time that it was reported in 2010 that Anwar al-Awlaki had been placed on the kill list of the military and the CIA.
There was reporting that at least three other U.S. citizens were on those lists.
And there have been various reports that other Americans may have been put on lists or may be considered targetable by the government.
But one of the problems that we in the public face is that the government has shrouded this program in really unacceptable secrecy.
They have claimed in court in response to our Freedom of Information Act lawsuits that they amazingly can't even confirm or deny whether the CIA has a targeted killing program.
Now, that's just not credible since the director of the CIA, the former director of the CIA, Leon Panetta, when he was in charge of the agency, spoke publicly and freely about his agency's drone strikes.
And the president has spoken about the targeted killing program in public several times.
So, you know, when it suits the administration's political ends to try to make this program look accurate or wise or effective or legal, they talk about it.
But when organizations like ours go to court to try to get records and get accurate information about just those kinds of things, how many Americans are on kill lists, what's the process to place any person on a kill list, how many civilians have been killed, the administration just starts to stonewall.
Right.
Well, and, you know, that New York Times article about the so-called kill list, it was the perfect example of that where, I forget exactly how they phrase it in the introduction of the article, but they say, more or less, the president sent his 15 closest friends to tell us all this stuff.
And it's all secret, or much of it is secret stuff, but it's clear that this is all, you know, an administration orchestrated PR piece that they put out through the New York Times.
It's not like it's a bunch of whistleblowers got together to spill the beans about this or something.
It's an administration leak, correct?
Yes.
Three dozen current and former government officials spoke to the reporters of that New York Times story.
It's just not plausible in our view that there wasn't an authorized plan by the administration to place information in the press.
Now, you know, the problem is not that the press is reporting on these things.
You know, there should be more information from the administration.
The problem is this concept of selective disclosure and this kind of secrecy where the government releases only the bits of information it thinks will make it look good, but then refuses to, you know, adhere to the promise of real transparency.
Even if the president just wants to joke about it because it makes him look good on TV or in front of his Hollywood friends or whatever.
Right, right.
Yeah, there's a sort of a well-known incident where he, I think it was at the White House Correspondents Dinner, where he made a joke about, you know, sending a drone strike after somebody who was going to, you know, date his daughters and not do right by them.
You know, it's really inappropriate humor in light of the gravity and seriousness of the program that he's running.
Now, wouldn't you, but it was somebody from the ACLU and from the CCR that I interviewed back when you guys were representing Alaki's father and trying to prevent the government to get a judge to enjoin Obama from assassinating him because they had announced beforehand, as you said, back in 2010, that they wanted to kill him.
And they said, oh, well, you don't have standing to sue.
You're not on the hit list.
Only your son is.
And they basically ducked any real legal question by doing so.
So now here we are, now that he's dead and his 16-year-old son, who, as you said, they either were lying or they had very bad intelligence saying that he was a fighting age male and it would be OK to kill him too or whatever, as though that made a difference.
Now it's all basically done.
So what exactly are you seeking as a result of this lawsuit?
What is it that they're supposed to do?
Do you want to get the judge to force them to fess up as to the process by which they decided to kill this guy?
Yeah, that's part of it.
I mean, part of what we're responding to here is that the attorney general a couple months ago made the really stunning claim that although the due process clause of the Constitution applies to U.S. citizens who are killed in these targeted killing strikes, in the administration's view, due process does not mean judicial process.
Somehow the administration should be able to make all of its decisions in secret about these targeting efforts and kill Americans without a court ever being involved.
So the number one goal of this lawsuit is to get into court and to, in fact, have a judge make the kind of decision that judges make every day.
Look at the evidence, look at the law, and determine whether high-level Obama administration officials violated the Constitution when they authorized and directed these drone strikes.
So we're asking the court to evaluate the legal standards, evaluate the evidence, and then determine whether there was a constitutional violation by these officials.
And if there in fact was, then a remedy would be appropriate as it is in any constitutional case.
Now I just imagine, I don't know if you were there at ACLU headquarters or what, watching on the big screen there when Eric Holder announced that that was the new definition of due process, with some bureaucrats asked each other about it, sort of like a national security letter where an FBI agent writes himself a warrant to tap all your electronic information, that kind of thing.
But that really is amazing, right?
That's a first in Anglo-American law, at least in a long, long time, right?
That due process, I mean I could see the King just saying forget due process, but he didn't pretend that his whim was due process, really, did he?
That's right.
There are narrow circumstances where the government wouldn't have to go to a court ahead of time, and that's really only outside of an armed conflict where there's a truly imminent threat.
So in the domestic context, if some guy is running down the street waving a gun around and pointing it at civilians on the sidewalk, the police are allowed to warn him and then use lethal force if in fact he's posing an imminent threat of killing other people without going to court first.
But that's really the only situation.
Otherwise, if the government wants to kill somebody, they have to convict them in a capital trial and the death penalty has to be approved by a judge.
The government's definition of due process is so broad and so flimsy, really, that it leaves very little left in the situation.
Well, I wish you guys the best of luck.
I wish you all the best, amicus curiae briefs from around the legal community and what, and trying to get this thing accomplished.
There's got to be a line drawn at the president killing suspects' kids because he feels like it, you know?
So thank you, ACLU.
Thank you, Nathan Wessler from the ACLU for your part in this and for your time on the show today.
I really appreciate it.
Thank you.
All right, everybody, that is Nathan Wessler from the ACLU.
Go to ACLU.org today and you can read all about Al-Awlaki v.
Panetta, Lawsuit Challenging Targeted Killings.