Can US kill American-born cleric Anwar al-Awlaki? Judge to hear case.

A federal judge is set to hear arguments on Monday in a lawsuit challenging an alleged secret Obama administration plan to use lethal force against an American-born Islamic cleric hiding in Yemen.

The cleric, Anwar al-Awlaki, is a leader of the Yemen-based group Al Qaeda in the Arabian Peninsula. He has facilitated training camps in Yemen, encouraged new recruits, and helped prepare Umar Abdulmutallab in his attempt to blow up an airliner near Detroit on Christmas Day 2009, government lawyers say.

In July, US authorities listed Mr. Awlaki as a “specially designated global terrorist.” According to press reports, he is on a US government “kill list.”

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The lawsuit, filed on behalf of Awlaki’s father by the American Civil Liberties Union, challenges the government’s authority to carry out the intentional killing.

Although the government has authority under certain circumstances to engage in the use of lethal force against American citizens deemed a threat to national security, those circumstances do not exist in the case of Awlaki, the lawsuit says.

ACLU lawyers are asking US District Judge John Bates to examine whether the Obama administration’s alleged plan to kill a US citizen, who has never been charged or convicted of a crime, violates constitutional safeguards and international law.

In response, government lawyers are asking Judge Bates to dismiss the lawsuit. While neither confirming nor denying the ACLU “kill list” accusation, they say Awlaki’s father, Nasser, lacks the necessary legal standing to bring the case.

They also argue that federal judges do not have authority to second-guess the executive branch in matters of warfare and foreign affairs. Justice Department lawyers say the issue of the possible use of force overseas against a terrorist organization is a question best left to the political branches of government rather than unelected judges.

Case involves authorization after 9/11

The lawyers say that Congress in the wake of the 9/11 attacks authorized the use of necessary and appropriate force against Al Qaeda and its affiliates. That congressional authorization applies both in Afghanistan against Al Qaeda and in Yemen against Awlaki, they say.

The government also seeks to invoke the state secrets privilege, saying the ACLU suit must be dismissed because any discussion of the kill list allegations in open court would disclose sensitive national security sources and methods.

ACLU lawyers object to the invocation of the state secrets privilege. They say if the government sought to prosecute Awlaki – rather than execute him without charge or trial – the state secrets claim would be barred.

“The government is seeking to impose the ultimate penalty [death] without trial, claiming a secrecy privilege that would be unavailable with trial,” writes ACLU lawyer Jameel Jaffer in his brief to Judge Bates. “It would be an odd and remarkable rule that would permit the government to avoid all judicial scrutiny simply by electing to bypass trial in favor of summary execution.”

The two-hour hearing in federal court arises at a time of increased concern within the Obama administration about the threat posed by Islamic militants based in Yemen. Authorities recently intercepted remote control bombs in packages air freighted from Yemen to Europe and the US.

Al Qaeda in the Arabian Peninsula is suspected of involvement in attacks against tourists and foreign workers in Yemen. It is also believed to be behind an August 2009 attempt to assassinate Saudi Interior Minister Prince Mohammed bin Nayef and an April attempt on the life of the British ambassador to Yemen.

Lethal action against Awlaki would not be the first time US officials have engaged a controversial killing of an American citizen in Yemen. In 2002, a hellfire missile fired by a predator drone destroyed a car traveling on a remote highway in Yemen. Among the six occupants was US citizen Kamal Derwish, a suspected Al Qaeda recruiter from Buffalo, N.Y.

Mr. Derwish was wanted in connection with the investigation of six young Muslims in Lackawanna who he convinced to go to Afghanistan to train with Al Qaeda.

The US has increasingly used Predator missile strikes in Afghanistan and Pakistan to target Al Qaeda and Taliban leaders.

The ACLU lawsuit focuses exclusively on the alleged targeting of Awlaki in Yemen. It seeks to draw a distinction between operations in Afghanistan, a zone of active armed conflict, and Yemen, where the ACLU says no such armed conflict currently exists.

Constitutional protections for US citizens

In the absence of an armed conflict, the US government must comply with constitutional protections enjoyed by American citizens, the ACLU lawyers say. The Fourth Amendment bars the government from engaging in excessive use of force against American citizens. The Fifth Amendment prohibits the government from depriving a citizen or his or her life without due process of law.

The use of lethal force may be justifiable, according to the ACLU, if the individual poses an imminent threat to the life or safety of others and there is no nonlethal alternative open to the government to neutralize the threat. The lawyers say these conditions do not apply to Awlaki.

The ACLU brief quotes a 2004 US Supreme Court decision written by then Justice Sandra Day O’Connor. “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens,” she wrote.

Government lawyers warn that judges should leave to the president and his advisers decisions of how best to shield the country from potential terrorist attacks. “Such judicial interference in fact-intensive decisions concerning how to protect national security could have unforeseen and potentially catastrophic consequences,” the government brief says.

Defendants in the case are President Obama, Defense Secretary Robert Gates, and CIA Director Leon Panetta.

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