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Obama administration urges judge to dismiss Aulaqi challenge to U.S. targeted killing policy

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By Spencer S. Hsu
Monday, November 8, 2010; 11:10 PM

Attorneys for the Obama administration urged a federal judge Monday to dismiss a lawsuit challenging the targeted killing of radical U.S.-born cleric Anwar al-Aulaqi in Yemen, warning that the case would place the courts "way, way out on a limb" in curbing the president's power to protect American lives in wartime.

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Douglas Letter, the Justice Department's terrorism litigation counsel, said a challenge brought by civil liberties groups retained by Aulaqi's father would enable a leader of an al-Qaeda branch in Yemen "to continue to try to plan and carry out terrorist attacks."

The arguments came during a tense, three-hour hearing in U.S. District Court in Washington before Judge John D. Bates.

"They are asking you to go way, way out on a limb here," Letter said - to order an "injunction against the president from protecting the security of the United States and United States citizens."

The heated argument capped a high-stakes legal battle that marks the first time administration officials were forced to publicly defend the constitutional authority of the CIA and U.S. military to place Aulaqi on a capture or kill list outside a war zone and absent an imminent threat.

The American Civil Liberties Union and the Center for Constitutional Rights, arguing for Nasser al-Aulaqi, filed suit in August, urging the courts to block what they called an extrajudicial execution order against a U.S. citizen. They also asked for clear legal standards for such operations.

"If the Fourth and Fifth Amendments mean anything at all, it is that there are limits on government's use of lethal force against one of its own citizens, and that courts have a role to play in determining those limits," Jameel Jaffer, director of the ACLU's national security project, told the court.

The U.S. government formally designated Aulaqi a global terrorist in July, describing him as an operational figure in last year's failed Christmas Day bomb plot against a jetliner over Detroit. Aulaqi has emerged as a leading English-language radicalizer for al- Qaeda, and his organization, al-Qaeda of the Arabian Peninsula, has claimed responsibility for last week's disrupted cargo bomb plot.

On Monday, Aulaqi, 39, appeared in a new video posted on extremist Web sites telling Muslims they were free to kill American "devils" at will, without the usual requirement of a religious blessing, or fatwa, the Associated Press reported.

Aulaqi's escalating threat punctuated a host of conundrums posed by the lawsuit. While the Obama administration characterized the suit as "bizarre" and "unprecedented," the civil liberties groups called the underlying policy "extreme" and "terrifying."

Bates asked why, since the courts must be consulted before the government taps a citizen's phone and can oversee property seizures, would it not have a role in limiting a citizen's placement on kill lists overseas. Likewise, courts have asserted authority to oversee the detention and electronic surveillance of terror suspects, Bates noted.

Bates told lawyers he would not make a decision for several weeks on whether to dismiss the case. The hearing concerned only the government's argument that Aulaqi's father lacked standing to bring the suit because Aulaqi could do so himself; that the policy in question is inherently a political decision, not a matter for courts to decide; and that, as a last resort, the case threatened to reveal "state secrets," and so could not proceed.

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