That's the question behind a lawsuit filed in U.S. District Court in Washington today on behalf of the father of Anwar al-Awlaki. The radical Muslim cleric, who was born in New Mexico, is thought to be hiding out in Yemen, where he is alleged to be a senior member of al-Qaida in the Arabian Peninsula.
Muhammad ud-Deen, AP
Anwar al-Awlaki, a Muslim cleric who was born in the United States, is widely reported to have been placed on the CIA's "capture or kill" list.
The Center for Constitutional Rights and the American Civil Liberties Union are suing the Treasury Department and the OFAC for refusing to grant them a license to represent al-Awlaki so they can legally challenge the authority of the CIA and U.S. military special forces to target him for killing.
The groups said they took the action because the government has not responded to its faxed license request on July 23 "despite the urgency created by an outstanding execution order."
Al-Awlaki's father, Nasser al-Awlaki, is in Yemen, where he met with ACLU lawyers in May. He was unavailable for comment. But lawyers for the groups said he is concerned that while no formal charges have been lodged against his son, he is widely reported to have been added to the CIA's "capture or kill" list, a designation that amounts to a warrant for his assassination.
OFAC Director Adam Szubin said in a statement that the civil liberties groups' claim is "significantly misleading." He said the agency, which did not formally respond to the request for a license but did not deny it either, has a longstanding policy "to broadly authorize the provision of pro bono legal services to designated persons in legal proceedings challenging governmental action."
"To the extent that the particular legal services that the ACLU wishes to provide in this instance do not fall into any of the broad categories that are generally licensed, OFAC will work with the ACLU to ensure that the legal services can be delivered," he said.
In a joint statement, the ACLU and the Center for Constitutional Rights responded by saying: "OFAC has neither issued a license nor stated that we don't need one. It suggests that it might eventually grant us a license for our work, but our application has already gone unanswered for 11 days.
"OFAC is well aware that the case relates to the government's decision to add a U.S. citizen to its 'targeted killing' list. To say that the matter is urgent is a dramatic understatement. Instead of issuing press releases, OFAC should simply issue us a license," they said.
The bigger issue at stake is a planned challenge to the government's covert assassinations of suspected terrorists far from war zones where battlefield rules have traditionally not applied.
Al-Awlaki is believed to be the first U.S. citizen the CIA has been authorized to kill since 2001 and is on a list of "specially designated nationals and blocked persons" whose assets are frozen by the Treasury Department. He earned his slot, in part, after it was discovered he was in e-mail contact with the Army major accused of killing 13 people in the Fort Hood shooting rampage. He also has been linked to the Nigerian man charged with trying to blow up a plane over Detroit on Christmas Day.
His inclusion on the killing list set off a legal debate over how far the government can or should go in its battle against terrorists and whether U.S. citizens are entitled to constitutional protections denied to foreign nationals. The legal director of Center for Constitutional Rights argues that the case brought today is not about Awlaki's guilt or innocence but the rule of law.
Whether the groups need a license or not, if they get to court on the larger issue it will be the first legal challenge to the CIA's secret target lists, said Pardiss Kebriaei, a CCR staff attorney. Al-Awlaki may elicit little sympathy given the attacks he has been linked to, but "the government cannot designate someone a terrorist and act as judge, jury and executioner outside any judicial process," she said.
Jonathan Manes, an ACLU lawyer, said the underlying lawsuit hinges on the fact that the United States is not at war with Yemen, where al-Awlaki holds duel citizenship.
"The laws that govern war don't apply anywhere and everywhere in the world," he said. "Outside of armed conflicts in Afghanistan and Iraq, the law of peace applies and the standards of killing a person under ordinary law are very stringent. There's a crucial distinction."
CIA Director Leon Panetta has called the use of unmanned drones in the targeted killing of al-Qaida leaders "the only game in town," and the Obama administration has resorted to the method in greater numbers than its predecessor. That has infuriated human rights groups that hoped President George W. Bush's exit would be a turning point in how the war against terror would be waged.
"There has been no meaningful change, and in fact there has been an expansion of the abuses of executive power that we saw under President Bush," said Kebriaei, whose group had sued the government over illegal detention, alleged torture and the secret rendition program.
Legal scholars have argued since 9/11 over whether accused terrorists are criminals entitled to due process of law or if the less stringent rules of war should apply. Al-Awlaki's father and his lawyers say he deserves to know the charges against the cleric and that al-Awlaki should be brought to trial to be judged for his alleged actions.
But Samuel Rascoff, who specializes in national security law at New York University, called targeted killings "absolutely essential to American counterterrorism" efforts.
While the lawsuit "breaks new ground" in a legal landscape that has focused mostly on government detention and surveillance policies, it is "incredibly unlikely" that a federal court will grant the father legal standing or agree with his argument, Rascoff said.
"The government maintains that al-Awlaki is an al-Qaida operative, no different than anyone threatening our country's security," he said. "The fact that he carries an American passport doesn't buy him immunity or special treatment from the sort of force the government has used against terrorists."
So why go to court if the odds are so low?
"It's to raise awareness," Rascoff said, "of a very delicate legal issue that the administration would prefer to be buried in government process and not a matter of public debate."