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Families sue US in Yemen drone strikes

WASHINGTON — Relatives of three US citizens killed in drone strikes in Yemen last year filed a wrongful-death lawsuit against four senior national security officials Wednesday.

The suit, in the US District Court here, opened a new chapter in the legal battle about the Obama administration’s use of drones to pursue terror suspects away from traditional ‘‘hot’’ battlefields such as Afghanistan.

The first strike, on Sept. 30, killed a group of people including Anwar al-Awlaki, a radical Muslim cleric who was born in New Mexico, and Samir Khan, a naturalized US citizen who lived at times in New York and North Carolina. The second, Oct. 14, killed a group of people including Awlaki’s 16-year-old son, Abdulrahman, who was born in Colorado.


Accused in the lawsuit of authorizing and directing the strikes are Leon E. Panetta, the secretary of defense; CIA chief David H. Petraeus; and two senior commanders of the military’s Special Operations forces, Admiral William McRaven of the Navy and Lieutenant General Joseph Votel of the Army.

“The killings violated fundamental rights afforded to all US citizens, including the right not to be deprived of life without due process of law,’’ the complaint says.

Press officials with the CIA, the Pentagon, and the Justice Department declined to comment.

The lawsuit, which seeks unspecified damages, was filed by Nasser Awlaki, who was Anwar’s father and Abdulrahman’s grandfather, and Sarah Khan, Samir’s mother. Lawyers with the American Civil Liberties Union and the Center for Constitutional Rights are assisting them.

In 2010, the two groups helped Nasser Awlaki in an effort to obtain a court injunction against government efforts to kill his son. A federal judge threw out the case, primarily on the ground that Nasser Awlaki had no standing to sue in place of his son. Now Nasser Awlaki and Sarah Khan represent the estates of their sons and his grandson.


But the new lawsuit may face other procedural impediments before any substantive ruling on whether the strikes violated the Constitution — or even a public acknowledgment that the US government did carry them out.

The Justice Department which is expected to provide lawyers for the defendants, may ask a judge to dismiss the case by asserting that the evidence necessary to litigate it would disclose state secrets or that decisions about whom to kill in an armed conflict are ‘‘political questions’’ not fit for judicial review. The government asserted both arguments in the 2010 case, and the judge who dismissed that lawsuit also cited the ‘‘political question’’ doctrine.

Even if a judge declined to dismiss the case on those grounds, the officials could assert that ‘‘qualified immunity’’ protected them from lawsuits alleging that they violated someone’s constitutional rights while performing official actions that did not violate ‘‘clearly established law’’ at the time.

While it has been widely reported that the United States carried out the strikes, the Obama administration has never officially acknowledged responsibility for them. The New York Times has described the details of a secret Justice Department memorandum that concluded it would be lawful to target Anwar Awlaki if capturing him was infeasible.

Several administration officials, including Attorney General Eric H. Holder Jr. in a speech at Northwestern University in March, have also defended the targeting of citizens, without a trial, if they join terrorist groups and under certain conditions.


‘‘Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces,’’ Holder said. ‘‘This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.’’

In 2010, reports surfaced that Anwar Awlaki had been placed on a ‘‘kill list’’ after the attempted bombing of a Detroit-bound airliner Dec. 25, 2009. The would-be bomber is said to have told his interrogators that Awlaki recruited him for the operation. Awlaki has also been accused of playing a role in other terrorist plots, but he was not indicted or tried.

The complaint says Awlaki should not have been designated ‘‘for death without the protections of a judicial trial’’ by the executive branch and contends that at the time of his killing, he did not present any immediate ‘‘concrete, specific and imminent threat of death or serious bodily injury.’’ It also asserts that any threat he did present when he was found could have been mitigated without lethal force, although it does not say how.

Complicating matters, it is believed that the Sept. 30 strike specifically targeted Awlaki, making the people around him — including Samir Khan — collateral damage. Likewise, Awlaki’s son is said to have been a bystander in the Oct. 14 strike. Samir Khan was involved in producing propaganda for Al Qaeda’s Yemen branch, but Abdulrahman Awlaki had not been accused of joining the group.


“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,’’ the lawsuit indicates.