Suit Over Targeted Killings Is Thrown Out
By CHARLIE SAVAGE
The New York Times, December 7, 2010
WASHINGTON — A federal judge on Tuesday threw out a lawsuit that had sought to block the American government from trying to kill Anwar al-Awlaki, a United States citizen and Muslim cleric in hiding overseas who is accused of helping to plan attacks by Al Qaeda’s branch in Yemen.
The ruling, which clears the way for the Obama administration to continue to try to kill Mr. Awlaki, represents a victory in its efforts to shield from judicial review so-called targeted killings, one of its most striking counterterrorism policies.
In an 83-page opinion, Judge John D. Bates said Mr. Awlaki’s father, the plaintiff, had no standing to file the lawsuit on behalf of his son. He also said decisions about targeted killings in such circumstances were a “political question” for executive branch officials to make — not judges.
Judge Bates acknowledged that the case raised “stark, and perplexing, questions” — including whether the president could
“order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based the mere assertion that he is a dangerous member of a terrorist organization.”
But while the “legal and policy questions posed by this case are controversial and of great public interest,” he wrote, they would have to be resolved on another day and, probably, outside a courtroom. Judge Bates sits on the United States District Court for the District of Columbia.
Matthew Miller, a Justice Department spokesman, praised the ruling for recognizing
“that a leader of a foreign terrorist organization who rejects our system of justice cannot enjoy the protection of our courts while plotting strikes against Americans. The court properly rejected that course and declined to intrude into sensitive military and intelligence matters.”
But Jameel Jaffer, a lawyer for the American Civil Liberties Union, called the decision “a profound mistake” that would dangerously expand presidential power. The A.C.L.U. and the Center for Constitutional Rights represented Mr. Awlaki’s father, Nasser al-Awlaki, in the matter without compensation.
“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation,” Mr. Jaffer said. “It would be difficult to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”
But Judge Bates rejected the notion that his ruling granted the executive “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.”
“The court only concludes that it lacks 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’s Yemen branch, “presents such a threat to national security that the United States may authorize the use of lethal force against him,” Judge Bates said.
Robert Chesney, a University of Texas law professor, said the limits of Judge Bates’ conclusion would be a matter of dispute. He portrayed it as “a sweeping argument against judicial review of targeted killing decisions.”
“The slippery slope is obviously the concern here,” Mr. Chesney said. “Judge Bates is at pains not to decide this question for other circumstances. But the question remains: what else besides this fact pattern would enable the government to have the same result?”
Mr. Jaffer said no decision had been made about an appeal.
Born in New Mexico in 1971, Mr. Awlaki moved to Yemen in 2004 and has made many public statements approving of terrorist attacks. Officials contend that he now plays an “operational” role with the group calling itself Al Qaeda in the Arabian Peninsula.
The Treasury Department has claimed that Mr. Awlaki helped direct the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009. After that failed attack, media outlets quoted anonymous officials as saying Mr. Awlaki had been placed on a list of terrorism suspects approved for killing.
Still, Mr. Awlaki has received no trial, and his father asked Judge Bates to bar attempts to kill his son unless he presented an imminent threat. The administration, while not confirming whether Mr. Awlaki is on any “kill list,” asked Judge Bates to dismiss the lawsuit.
The judge largely agreed with the government’s arguments. First, he rejected the father’s standing to sue, saying Mr. Awlaki could pursue such a case himself if he surrendered to American authorities — adding that there was no indication that Mr. Awlaki had sought the lawsuit.
Moreover, Judge Bates found, it would be inappropriate to second-guess, ahead of time, national-security officials’ evaluation of whether intelligence showed that some overseas person — even a United States citizen — poses such a threat that the person should be killed.
He sidestepped several issues, including whether the Congressional authorization to use military force against the perpetrators of the Sept. 11 attacks, covers Yemen or the terrorist group there, whose connections to the original Al Qaeda are hazy.
The opinion said it was unnecessary to decide whether the litigation should be dismissed under the state-secrets privilege, which allows the executive branch to block lawsuits that could reveal national-security information. The administration had invoked that privilege in its briefings, but urged Judge Bates to dismiss the case on different grounds.