WASHINGTON — The Obama administration urged a federal judge early Saturday to dismiss a lawsuit filed over its targeting of a U.S. citizen for killing overseas, saying that the case would reveal state secrets.
The U.S.-born citizen, Anwar al-Awlaki, is a cleric now believed to be in Yemen. Federal authorities allege that he is leading a branch of al-Qaida there.
Government lawyers called the state-secrets argument a last resort to toss out the case, and it seems likely to revive a debate over the reach of a president’s powers in the global war against al-Qaida.
Civil-liberties groups suedthe U.S. government on behalf of al-Awlaki’s father, arguing that the CIA and the Joint Special Operations Command’s placement of al-Awlaki on acapture-or-kill list of suspectedterrorists - outside a war zone and absent an imminent threat - amounted to an extrajudicial execution order against a U.S. citizen. They asked a U.S. district court in Washington to block the targeting.
In response, Justice Department spokesman Matthew Miller said the groups are asking “a court to take the unprecedented step of intervening in an ongoing military action to direct the president how to manage that action - all on behalf of a leader of a foreign terrorist organization.”
Miller added, “If al-Awlaki wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions.”
In a statement, lawyers for Nasser al-Awlaki condemned the government’s request to dismiss the case without debating its merits, saying that judicial review of the pursuit oftargets far from the battlefield of Afghanistan is vital.
“The idea that courts should have no role whatsoever in determining the criteria by which the executive branch can killits own citizens is unacceptable in a democracy,” the American Civil Liberties Union and Center for Constitutional Rights said.
“In matters of life and death, no executive should have a blank check,” they said.
The government filed its brief to U.S. District Judge Robert Bates just after a midnight Friday deadline, blaming technical problems, and the latenight filing underscored the political and diplomatic stakes for President Barack Obama. His administration announced last year that it would set a higher bar when hiding details of contentious national security policies.
Justice Department officials said they invoked the legal argument reluctantly, mindful that domestic and international critics attacked former President George W. Bush for purportedly waging the fight against terrorism with excessive secrecy and using unchecked claims of executive power.
The Obama administration has cited the state-secrets argument in at least three cases since taking office - in defense of Bush-era wiretapping without warrants, surveillance of an Islamic charity, and the torture and rendition of CIA prisoners. It prevailed in the last case last week, on a 6-5 vote by the U.S. Court of Appeals for the 9th Circuit.
A senior Justice official, speaking on condition of anonymity, said the administration is engaging in “a much narrower use of state secrets” than did its predecessor, which cited the argument dozens of times - often, the official said, to “shut down inquiries into wrongdoing.”
In its 60-page filing, the Justice Department cites state secrets as the last of four arguments, objecting first that al-Awlaki’s father lacks standing, that courts cannot lawfully bind future presidents’ actions in as-yet undefined conflicts, and that in war the targeting of adversaries is inherently a “political question.”
Robert Chesney, a nationalsecurity law specialist at theUniversity of Texas School of Law, said Obama lawyers would undoubtedly prefer not to stoke the state-secrets debate or to risk judicial review of its claim to a borderless battlefield.
Front Section, Pages 4 on 09/26/2010