By Spencer S. Hsu
Washington Post Staff Writer
Saturday, September 25, 2010; A5

The Obama administration will urge a federal judge to dismiss a lawsuit over its targeting of a U.S. citizen for killing overseas, Justice Department officials said late Friday, arguing that the case would reveal state secrets.

The U.S.-born citizen, Anwar al-Aulaqi, is a cleric now believed to be in Yemen. Federal authorities allege that he is leading a branch of al-Qaeda there.

Government officials suggested the state-secrets argument would be a last resort to toss the case, and it seems likely to revive a debate over the reach of a president's powers in the global war against al-Qaeda.

Civil liberties groups sued the U.S. government on behalf of Aulaqi's father, arguing that the CIA and the Joint Special Operations Command's placement of Aulaqi on a capture-or-kill list of suspected terrorists - outside a war zone and absent an imminent threat - amounted to an extrajudicial execution order against a U.S. citizen. They asked the U.S. District Court in Washington to block the targeting.

In response, a Justice official, speaking on the condition of anonymity before court papers were filed, said, "The idea that the American legal system can be used to pry out classified information and give it to an operational terrorist who we know is actively plotting against the United States now just turns the system on its head."

Another official said Aulaqi "could have all due process if he wants to return to the U.S. to file suit in federal court."

In a statement released in anticipation of the government's filing, lawyers for Nasser al-Aulaqi condemned any move by the government to dismiss the case without debating its merits, saying that judicial review of the pursuit of targets far from the battlefield of Afghanistan is vital.

"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 American Civil Liberties Union and the Center for Constitutional Rights said.

"In matters of life and death, no executive should have a blank check," they said.

The late-night maneuvering, to meet a midnight Friday deadline set by U.S. District Judge Robert Bates, underscored the political and diplomatic stakes for President Obama. His administration announced last year that it would set a higher bar when concealing details of controversial national security policies.

Justice Department officials said they invoked the legal argument reluctantly, mindful that domestic and international critics attacked former president George W. Bush for waging the fight against terrorism with excessive secrecy and unchecked claims of executive power.

The Obama administration has cited the state-secrets argument in at least three cases - in defense of Bush-era warrantless wiretapping, surveillance of an Islamic charity and the torture and rendition of CIA prisoners. It prevailed in the last case last week, on a 6 to 5 vote, in the U.S. Court of Appeals for the 9th Circuit.

A senior Justice official, speaking on condition of anonymity, said the administration is engaging in "a much narrower use of state secrets" than did its predecessor, which cited the argument dozens of times - often, the official said, to "shut down inquiries into wrongdoing."

The Justice Department was expected to cite state secrets as the last of four arguments, objecting first that Aulaqi's father lacks standing, that courts cannot lawfully bind future presidents' actions in as-yet undefined conflicts, and that in war the targeting of adversaries is inherently a "political question."

Justice officials said they will argue that the judge can decide the question without reaching the last argument but included it because Bates turned down their request to file briefs as necessary and instead told them to bundle all claims in one filing.

Robert M. Chesney, a national security law specialist at the University of Texas School of Law, said Obama lawyers would undoubtedly prefer not to stoke the state-secrets debate, or to risk judicial review of the claim to a borderless battlefield.

"The real big issue here is . . . are we only at war in Afghanistan, or can the U.S. government lawfully use war powers in other cases, at least where the host nation consents or there is no host government?" Chesney said.

"You're trying to avoid a judicial ruling on the merits of the whole issue," Chesney said, adding, "But at the end of the day, if it's your best argument in a case you want to win, you're going to make that argument."

Staff researcher Julie Tate contributed to this report.