NY Times: Judge Claims Potential Targetting Killing of American Civilian is a “Political Question”

WASHINGTON — A federal judge threw out a lawsuit on Tuesday that sought to block the American government from trying to kill Anwar al-Awlaki, a United States citizen and Muslim cleric accused of playing a significant role in Al Qaeda’s branch in Yemen.

The ruling clears the way for the Obama administration to continue to try to kill Mr. Awlaki and represents a victory in its efforts to shield from judicial review one of its most striking counter-terrorism policies.

The court not only rejected the lawsuit on the grounds that Mr. Awlaki’s father had no standing to file it on behalf of his son, but held that decisions to mount targeted killings overseas are a “political question” for executive officials to make — not judges.

In an 83-page opinion, Judge John Bates of the District of Columbia district court 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 even though 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 or outside of the courts, since this case had to be dismissed at the onset.

The Justice Department had no immediate comment on the ruling. But Jameel Jaffer, a lawyer for the American Civil Liberties Union who helped represent Mr. Awlaki’s father, Nasser al-Awlaki, in the matter, called the decision “a profound mistake” that he said would dangerously expand presidential powers.

“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.

Judge Bates rejected the notion that his ruling amounting to holding that the executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” His ruling emphasized that it was limited to the circumstances of Mr. Awlaki, whom the intelligence community has said is engaged in specific operational planning of attacks against the United States.

“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, Judge Bates said, “presents such a threat to national security that the United States may authorize the use of lethal force against him.” Robert Chesney, a University of Texas law professor who specializes in national security law, said the limits of the theory articulated by Judge Bates would be a matter of hot dispute.

“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 — no judicial involvement in a targeted-killing decision?”

The A.C.L.U., along with the Center for Constitutional Rights, brought the lawsuit on behalf of Mr. Awlaki’s father last summer. It first had to receive permission to represent Nasser al-Awlaki from the Treasury Department, which has labeled Anwar al-Awlaki a “specially designated global terrorist.”

Mr. Awlaki, who was born in New Mexico in 1971, moved to Yemen in 2004. He has made many videos and published many writings on the Internet calling for Muslims to attack the United States. Within the last year, government officials contend, he has evolved from being a mere propagandist to playing an “operational role” in specific attempted attacks. Among other things, he is accused of directing Umar Farouk Abdulmutallab, the Nigerian man who attempted to blow up a Detroit-bound airliner on Dec. 25, 2009.


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