POSTED: 9:52 a.m. HST, Dec 7, 2010
LAST UPDATED: 9:57 a.m. HST, Dec 7, 2010
WASHINGTON — A judge on Tuesday threw out a lawsuit aimed at preventing the United States from targeting anti-American cleric Anwar al-Awlaki for death, but questioned whether a president or his aides can unilaterally order a U.S. citizen assassinated for terrorist activity.
U.S. District Judge John Bates said in an 83-page opinion that he does not have the authority to review the president's military decisions and al-Awlaki's father does not have the legal right to sue to stop the United States from killing his son. But Bates also said the "unique and extraordinary case" raised vital considerations of national security and for military and foreign affairs.
Among the "stark and perplexing questions" Bates said the case raises is why courts have authority to approve surveillance of Americans overseas but not their killing. And he questioned whether the president or his advisers can order the assassination of a U.S. citizen without "any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization."
"The serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another nonjudicial forum," wrote Bates, an appointee of President George W. Bush and an Army veteran.
Al-Awlaki, believed to be hiding in Yemen, has urged Muslims to kill Americans. He also has been linked to last year's shooting at Fort Hood, Texas, and the attempted bombing of a U.S.-bound flight last Christmas.
Obama administration officials have confirmed to The Associated Press that al-Awlaki is on a capture or kill list, although the Obama administration declined to confirm or deny that in court proceedings.
The cleric's father, Nasser al-Awlaki of Yemen, represented by the American Civil Liberties Union and the Center for Constitutional Rights, argued that international law and the Constitution prevented the administration from unilaterally targeting his son for death unless he presents a specific imminent threat to life or physical safety and there are no other means to stop him. The suit against President Barack Obama, Defense Secretary Robert Gates and CIA Director Leon Panetta, also tried to force the government to disclose standards for determining whether U.S. citizens like his son, born in New Mexico in 1971 and raised in the United States, can be targeted for death.
"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 decides is a threat to the nation," said ACLU deputy legal director Jameel Jaffer. "It really would be difficult to conceive of a proposition more inconsistent with the Constitution. Every other presidential power is subject to checks and balances."
Administration officials argued the court has no legal authority to review the president as he makes military decisions to protect Americans against terrorist attacks. Bates agreed, although somewhat reluctantly.
"To be sure, this court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the executive's unilateral decision to kill a U.S. citizen overseas is constitutionally committed to the political branches and judicially unreviewable," Bates wrote. "But this case squarely presents such a circumstance."
Bates also said he must dismiss the case because Anwar al-Awlaki did not bring the suit himself. The judge was not swayed by the father's argument that the cleric could not sue because it would force him to come out of hiding in risk of his life. Bates said al-Awlaki could peacefully present himself under protection of international law and even suggested in a footnote that the cleric could possibly participate via videoconferencing while still in hiding.
Bates also said there's no evidence al-Awlaki wants his father to sue to protect his constitutional rights — the two are not in contact because of the safety risk. On the contrary, Bates said, al-Awlaki has publicly denounced the U.S. legal system and said Muslims are not bound by Western law.
The Obama administration also said the case should be thrown out because it could disclose state secrets. But Bates agreed with the administration that he didn't need to consider that argument because the case should be thrown out on other grounds.
Assistant Attorney General Tony West applauded the ruling and said he was pleased the court didn't take up the state secrets claim.
"People need to remember that this really was an unprecedented case in which the plaintiffs were asking a court to review military decisions for the benefit of a leader of a foreign terrorist organization," West said. "And as we said when we filed this case, if Anwar al-Awlaki wants to access our court systems he ought to surrender to the authorities and be held accountable for his actions."
Plaintiffs attorneys said they were considering whether to appeal.