By Spencer S. Hsu
Washington Post Staff Writer
Sunday, September 26, 2010; 4:03 AM
When senior Obama administration officials invoked the state secrets privilege Saturday to dismiss a lawsuit brought on behalf of U.S.-born cleric Anwar al-Aulaqi, they declared in federal court that the case threatened to expose secret military and intelligence operations against al Qaeda's overseas network.
In a 60-page filing, the government asked U.S. District Judge Robert Bates to dismiss a lawsuit filed by civil rights groups retained by Aulaqi's father seeking to block his Yemen-based son's placement on the CIA and Joint Special Operations Command capture-or-kill list of suspected terrorists.
The filing also asked the court to dismiss the case without debating the merits of any future actions potentially taken against Aulaqi on the grounds that targeting in wartime is a matter for presidents, and that Aulaqi's father did not have legal standing to bring the case.
Civil rights groups filed a suit last month to halt the targeting of Aulaqi, arguing that such an action outside a war zone and absent an imminent threat amounted to an extrajudicial execution order against a U.S. citizen.
In an effort to keep secret particular operations in Yemen, Defense Secretary Robert M. Gates said classified "information concerning whether or not U.S. armed forces are planning to undertake military actions in a foreign country, against particular targets, under what circumstances, for what reasons and pursuant to what procedures or criteria" cannot be disclosed without seriously harming national security.
CIA Director Leon Panetta sought to withhold "any information, if it exists, that would tend to confirm or deny any allegations in the complaint pertaining to the CIA."
Director of National Intelligence James R. Clapper Jr. in his declaration cited Aulaqi's leadership role in al Qaeda in the Arabian Peninsula and a Dec. 25 bombing plot against a Detroit-bound jetliner.
Government filings quoted Aulaqi as justifying the killings of U.S. citizens including children in a May 23 propaganda video: "No one should even ask us about targeting a bunch of Americans who would have been killed in an airplane. Our unsettled account with America includes, at the very least, one million women and children. I'm not even talking about the men."
The American Civil Liberties Union and the Center for Constitutional Rights, representing Nasser al-Aulaqi, said in a statement, "In matters of life and death, no executive should have a blank check."
Robert M. Chesney, a national security law specialist at the University of Texas School of Law, said Obama lawyers would undoubtedly prefer to avoid debate over the limits of unilateral executive wartime powers, or risk judicial review of its claim to a borderless battlefield.
"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," Chesney said. "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?"