This article misstated the first name of the federal judge considering the lawsuit over the United States' targeting of Anwar al-Aulaqi. The judge is U.S. District Judge John Bates, not Robert Bates.
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Obama invokes 'state secrets' claim to dismiss suit against targeting of U.S. citizen al-Aulaqi
The Obama administration has cited the state-secrets argument in at least three cases since taking office - 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 by 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."
In its 60-page filing, the Justice Department cites 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."
Robert M. Chesney, a national security law specialist at the University of Texas School of Law, said that Obama lawyers would undoubtedly prefer not to stoke the state-secrets debate, or to risk judicial review of its 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.