Suit challenging terrorist list is dismissed

By Spencer S. Hsu
Washington Post Staff Writer
Wednesday, December 8, 2010

A federal judge tossed out a lawsuit Tuesday that challenged the Obama administration's placement of a Yemeni cleric, who is also a U.S. citizen, on a kill-or-capture list of terrorists linked to al-Qaeda.

U.S. District Judge John D. Bates of the District ruled that the Yemeni father of the cleric, al-Qaeda propagandist and plotter Anwar al-Aulaqi, lacked the standing to bring the challenge in federal court. Bates's 83-page opinion handed a victory to the White House and a setback to civil liberties groups.

Bates also said the case raised "stark" and "perplexing" questions about the scope of presidential wartime powers and the role of the courts before concluding that he lacked the jurisdiction to review the targeting of a U.S. citizen abroad for death.

"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 . . . judicially unreviewable. But this case squarely presents such a circumstance," Bates wrote.

"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," such as before Congress, the judge said.

The American Civil Liberties Union and the Center for Constitutional Rights filed suit in August in behalf of Aulaqi's father, Nasser al-Aulaqi. The groups said the targeting of Anwar al-Aulaqi for killing or capture far from a war zone and absent an imminent threat amounted to an extrajudicial execution order against a U.S. citizen. They also asked for clear legal standards for such operations.

Unnamed U.S. officials disclosed in the spring that Aulaqi, 39, had been placed on the CIA and Joint Special Operations Command capture-or-kill lists before formally designating him a global terrorist in July. The government would not confirm or deny Aulaqi's status in court.

Officials say Aulaqi, who is in hiding, was an operational planner in last year's failed Christmas Day bomb plot against a jetliner over Detroit and an inspiration behind numerous attacks, including the November 2009 shootings at Fort Hood, Tex. His organization, al-Qaeda of the Arabian Peninsula, also claimed responsibility for last month's disrupted cargo bomb plot.

In a statement after Bates's ruling, Jameel Jaffer, deputy legal director of the ACLU, said it would be "a profound mistake" to allow the government "unreviewable authority to carry out the targeted killing of any American, anywhere."

"It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty," Jaffer said.

Bates said the lawsuit was "unique and extraordinary." In the opinion, he wondered why a judge's warrant was required for the government to target a U.S. citizen overseas for electronic surveillance but prohibited to target one for death.

On the other hand, he asked, can a citizen use the courts to defend his constitutional rights while evading U.S. authorities, calling for "jihad" and planning for a terrorist organization that has carried out several attacks on the country?

Bates agreed with lawyers for the Obama administration who said that Aulaqi's father lacked the standing to sue on behalf of his son, who they promised could safely turn himself in if he wanted access to the federal courts as a U.S. citizen. Anwar al-Aulaqi was born in New Mexico in 1971.

More broadly, the judge wrote that in war, the targeting of adversaries is inherently a "political question" for the other branches of government to decide. Assessing Aulaqi's ties to al-Qaeda, the danger he poses to American lives, and related diplomatic and military factors is beyond the court's ability to manage, Bates said.

The administration also invoked the state secrets privilege, arguing that the case could not be decided without revealing information damaging to national security. But it agreed that it was not necessary to decide that question to dismiss the case.

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