Obama Administration Hopes to Dismiss Lawsuit Challenging Targeted Killing
CIA Program Reportedly Targets U.S. Citizen Who Inspired American Terror Suspects
By ARIANE de VOGUE and JASON RYAN
WASHINGTON, Sept. 25, 2010
"To litigate any aspect of this case would require the disclosure of highly sensitive national security information concerning alleged military and intelligence actions overseas," government lawyers argued in papers filed early Saturday morning.
The government cites, in part, the "states secret" argument to dismiss the case, saying that if the suit were to go forward it would provide a "treasure trove of vital information" that would enable terrorist organizations to "alter their plans and conceal their planning."
The government believes Awlaki is a member of al Qaeda in the Arabian Peninsula, a group that gained prominence for its connection to the attempted bombing of Northwest Airlines Flight 253 in Detroit on Christmas Day.
U.S. counterterrorism and homeland security officials say intelligence information indicates that Awlaki recently has taken an operational role in the group. The government has said that Awlaki is a "specially designated global terrorist."
Awlaki's father, Nasser al-Awlaki, believes the government has authorized the killing of his son and has filed the suit.
The elder Awlaki, represented by the ACLU and the Center for Constitutional Rights, seeks a declaration from the court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against imminent threats of death.
"The right to life is the most fundamental of all rights," the lawsuit claims. "Outside the context of armed conflict, the intentional use of lethal force without prior judicial process is an abridgement of this right except in the narrowest and most extraordinary circumstances."
The government also argues that Nasser al Awlaki has no right to bring the suit on behalf of his son, because the younger Awlaki does not lack "access to the courts."
Rights Groups Troubled by Idea of Targeted Killings of U.S. Citizens
Since 9/11, the notion that the government could target a U.S. citizen off the traditional battlefield has troubled human rights groups.
"The United States' assertion of an ever-expanding but ill-defined license to commit targeted killings against individuals around the globe, without accountability, does grave damage to the international legal frameworks designed to protect the right to life," said Philip Alston, a New York University professor who is the author of a report on targeted killings that was submitted to the U.N. Human Rights Council, in a statement he issued in June.
The Obama administration's call for the dismissal of the lawsuit is sure to infuriate those who hoped the current White House would make a clean break from some of the legal arguments made by the Bush administration during the war on terror.
"The idea that courts should have no role whatsoever in determining the criteria by which the executive branch can kill its own citizens is unacceptable in a democracy," the ACLU and CCR said in a joint statement. "In matters of life and death, no executive should have a blank check."
The administration move will strike some critics as too broad of an assertion of executive power, intended to keep some counterterrorism actions outside of the realm of the courts, said Matthew Waxman, who served in the Bush administration and now is at Columbia Law School.
The administration will face criticism that, contrary to its pledges of greater transparency, it is following the Bush Administration in trying to shield controversial counter-terrorism programs from court and public scrutiny.
"It is seen by some as not just an attempt to assert executive powers, but to make those powers unreviewable," Waxman said. "The Obama administration will face criticism that, contrary to its pledges of greater transparency, it is following the Bush Administration in trying to shield controversial counter-terrorism programs from court and public scrutiny."
But the argument has found success in the courts.
Recently, the administration successfully got a California case challenging an aspect of the Bush administration's "extraordinary rendition program" dismissed by arguing that if the suit were to go forward in open court, it would jeopardize national security.
CIA Chief on Anwar al-Awlaki: 'He's Clearly Someone We Are Looking For'
Awlaki was born in New Mexico in 1971. He left seven years later for Yemen but returned to the United States to attend college at Colorado State University. He obtained a master's degree at San Diego University and later enrolled at George Washington University, but did not complete a Ph.D. program there. He is married with three children.
"He's clearly someone we are looking for," CIA Director Leon Panetta, a defendant in the suit by Awlaki's father and the rights groups, told the Wall Street Journal in March. "There isn't any question that he is one of the individuals that we're focusing on."
Officials say Awlaki may be linked to other terrorism plots in the United States. He has been tied to Army Maj. Nidal Hasan, the accused gunman in the November 2009 shootings at Fort Hood in Texas.
"We take direct actions against terrorists in the intelligence community," then-Director of National Intelligence Dennis Blair told the House Intelligence Committee in February. "[If] we think that direct action will involve killing an American, we get specific permission to do that.
"Whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans -- those are the factors involved," Blair said. "We don't target people for free speech. We target them for taking action that threatens Americans."