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September 10th, 2010

The ACLU and CCR Fail to Understand that America Can’t Fight Terrorism With Local Law Enforcement

By Nathan Tucker

As Americans pause this Saturday to mark the 9th anniversary of the 9/11 terrorists attacks, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) recently filed a lawsuit challenging the government’s policy of using drones to kill American al-Qaeda terrorists.

Both groups filed suit on behalf of the father of Anwar Al-Aulaqi, an Islamic cleric living in Yemen who is believed to have ties to the Fort Hood massacre, the foiled Christmas Day “underwear bomber,” and the attempted Times Square bombing.  It has been reported that Al-Aulaqi has been placed on the government’s “kill lists,” though the administration, naturally, is not discussing the issue publicly.

The groups argue that targeted strikes of U.S. citizens by military drones are prohibited by both international law and the U.S. Constitution.  Vince Warren, the Executive Director of CCR, stated in a press release that the “United States simply cannot execute people, including its own citizens, anywhere in the world based on its own say-so.  The law prohibits the government from killing without trial or conviction other than in the face of an imminent threat that leaves no time for deliberation or due process.”

The lawsuit is a publicity stunt in which the groups frame the debate as one over the execution without trial of an American citizen abroad by his own government.  But they go even further in their complaint by arguing that international law prohibits all “targeted killing of individuals,” whether U.S. citizens or not.

The larger issue for the ACLU and CCR is not so much the citizenship but rather the location of the person targeted.  Unless the terrorist is in an actual zone of armed conflict, “targeted killing amounts to the imposition of a death sentence without charge, trial, or conviction.”

Their goal, made explicit in their complaint, is to stop drone attacks on all terrorists, regardless of citizenship, “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.”

Outside of press releases, the issue of whether the targeted terrorists are U.S. citizens or not doesn’t matter to the ACLU and CCR, nor should it.  A terrorist is no less a terrorist because he happens to be a U.S. citizen.  His goal of destroying the American infidels by any means possible is indistinguishable from that of other terrorists, and our response should likewise be indistinguishable.

The war for terror is being waged by both Americans and non-Americans, and it would be irresponsible for us to attempt to distinguish among terrorists in the field based on their nationality.  While captured American terrorists may be entitled to rights under the U.S. Constitution that are not applicable to foreign terrorists, U.S. citizens who are actively engaged in treason do not enjoy a constitutional right to be treated any less harshly than their fellow terrorists.

Nor does the Constitution or international law require that the United States, or any other country, stop the pursuit of terrorists simply because they are currently not engaged in pitched battle.  Even liberal legal academic and current State Department legal advisor Harold Koh argues that individuals “who are part of such an armed group are belligerents and, therefore, lawful targets under international law.”

The ACLU and CCR fail to understand, as the Left too often does, that terrorism is not a law enforcement act that can be handled by ordinary prosecutorial tools.  Nor are terrorists only engaged in terrorism when they actually blow things up or find themselves in a shoot-out with U.S. forces.  Those who are actively engaged in planning attacks, raising money, and recruiting new soldiers are no less terrorists simply because no bullets happen to be flying or bombs going off at that time.

There are factors, of course, that should be considered before a missile strike is ordered.  As Koh has noted, the administration considers “the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat” before a strike is ordered.

Additionally, the administration already notifies the bipartisan leadership of the congressional intelligence committees in advance of any drone attack.  Furthermore, under congressional supervision, there should be sufficient reviews and checks built into the process of designating kill targets to ensure reliable intelligence.

In the end, the nationality and location of the terrorist do not make a terrorist, his actions do.  And if he is actively engaged in waging war on the United States or its interests, our nation has the right to defend itself by taking the war to him and eliminating the threat.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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