Judge Throws Out Challenge to Targeted Assassination

Dec. 7, 2010 -- In a victory for the Obama administration, a federal judge threw out a lawsuit today challenging the governments' authority to assassinate Anwar Al-Awlaki, a U.S. citizen hiding in Yemen.

Awlaki is a member of Al Qaeda in the Arabian Peninsula (AQAP). He has been linked to the attempted bombing of Northwest Airlines Flight 253 on Christmas day 2009, the shootings at Fort Hood in Texas by Army Maj. Nidal Hasan and the recent seizure of bomb-making materials in the cargo of two planes.

According to ABC's Martha Raddatz, President Obama himself has authorized the targeted killing of Awlaki in Yemen, where he is believed to be hiding.

Two public interest groups, the American Civil Liberties Union and the Center for Constitutional Rights, had filed the suit on behalf of Anwar al-Awlaki's father, Nasser al- Awlaki. They sought 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.

But U.S. District Judge John Bates found that the court had no jurisdiction to hear the case because it was brought by Awlaki's father instead of Awlaki himself. Furthermore, the judge agreed with the government that the issue of whether Awlaki poses a national security threat to the United States is best left to the political branches and not the Court.

Lawyers for Nasser Al-Awlaki argued that his son could not bring the case on his own because he was in hiding and feared for his life.

The judge disagreed. "There is reason to doubt," Bates writes, "whether Anwar Al-Awlaki, is, in fact, incommunicado. Since his alleged period of hiding began in January 2010, Anwar Al-Awlaki has communicated with the outside world on numerous occasions."

Referring to statements that Awlaki has publicly expressed regarding his desire for "jihad against the West," Judge Bates writes, "Such statements -- which reveal a complete lack of respect for U.S. law and governmental structures as well as a belief that it is 'legal' and 'legitimate' to violate U.S. law -- do not reflect the views of an individual who would likely want to sue to vindicate his U.S. constitutional rights in U.S. Courts. "

Judge Rules U.S. Can Try to Kill Al Qaeda Member

Noting that the Government lawyers refused to confirm whether Awlaki is actually on a government kill list, Judge Bates said that there were "no judicially manageable standards" by which courts can assess the President's interpretation -- based on military intelligence -- whether to use military force against a terrorist target overseas.

"The Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an 'operational' member of Al-Qaeda AQAP presents such a threat to national security that the United States may authorize the use of lethal force against him."

Lawyers for Awlaki's father released a statement expressing their disappointment in the ruling.

"It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context," said Jameel Jaffer, Deputy Legal Director of the ACLU. "We continue to believe that the government's power to use lethal force against American citizens should be subject to meaningful oversight by the courts."

Legal experts say the Judge was careful to confine his ruling to the facts presented in this case.

"The judge leaves room for some litigation in a case where the U.S. has already acted" said Stephen I. Vladeck, a professor at American University Washington College of Law, "but finds in this instance that the courts don't have the competence to stop the government from going forward."

Vladeck said the judge was careful in how he wrote the opinion, suggesting it might not apply to U.S. citizens within the United States.

"At least for now, individuals in Awlaki's position are not going to be able to turn to the U.S. courts for any protection."

Bates said he recognizes "the somewhat unsettling nature of [the court's] conclusion" that a judge may sometimes not be able to stop a president from ordering the killing of a U.S. citizen overseas. But he concluded, "This case squarely presents such a circumstance."

He said the case presents fascinating questions, such as whether the president may order "the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization." But he said such questions must "await another day or another (non-judicial) forum."

At a news conference today, Assistant Attorney General Tony West said, "We are pleased with the court's ruling. People need to remember that this really was an unprecedented case in which plaintiffs were asking a court to review military decisions for the leader of a foreign terrorist organization. And as we said when we filed this case, if Anwar al-Awlaki wants to access to our court system he ought to surrender to authorities and be accountable for his actions. So were pleased with the legal ruling the court has issued and were pleased that the court agreed with us that it did not need to reach state secrets in order to dispose of this case."