Judge Torn Over Lawsuit in Drone Strike that Killed Americans

Washington, DC — Courts cannot second-guess drone strikes that kill U.S. citizens overseas, an Obama administration lawyer argued Friday.

A Republican-appointed judge sounded dubious about the expansive claim, saying she was “really troubled” by assertions that courts are completely shut out of the drone strike debate. But for other legal reasons, the judge also sounded hesitant about a lawsuit targeted at top military and intelligence officials for violating the constitutional rights of U.S. citizens blown up in foreign lands.

“There are instances where wrongs are done, but for one reason or another they cannot be remedied in a civil suit,” U.S. District Court Judge Rosemary M. Collyer said.

The American Civil Liberties Union and the Center for Constitutional Rights, representing a family member, have sued former Defense Secretary Leon Panetta and other former officials over the two separate drone strikes that killed three U.S. citizens in Yemen. The Obama administration wants the lawsuit dismissed.

The lawsuit is the latest challenge to the administration’s secretive war-fighting practices that have mobilized skeptics on both the right and the left.

On Sept. 30, 2011, missiles fired from a remotely piloted aircraft killed U.S. citizens Anwar al Awlaki and Samir Khan, along with at least two other people traveling with them in Yemen. Two weeks later, another drone strike at an open-air restaurant in Yemen killed seven people including Abdul Rahman Anwar Awlaki, the 16-year-old son of al Awlaki.

The same drone strikes against U.S. citizens that incited the ACLU lawsuit heard Friday also sparked a 13-hour filibuster in March from Republican Sen. Rand Paul of Kentucky. A Gallup Poll in March found that while 62 percent of U.S. residents surveyed supported drone strikes against terrorists, 52 percent opposed strikes against U.S. citizens.

During the 80-minute oral argument Friday before a standing-room-only crowd, Collyer sounded highly dubious about the administration’s most far-reaching claim _ that judges should steer entirely clear of military and national security decision-making.

“The executive is not an effective check on the executive when it comes to constitutional rights,” Collyer told Deputy Assistant Attorney General Brian Hauck. “The argument you are making is tied to an assertion of authority (in which) the court has no role. I find that a little disconcerting.”

Neither Hauck’s declaration that the decision to strike at a target overseas is “outside the court’s competence” and “unfit for adjudication,” nor his insistence that an “extensive executive review” and “robust congressional oversight” ensure rights are protected, seemed to reassure Collyer.

But while Hauck struggled in his efforts to establish a judicial no-fly zone over the administration’s drone policy, ACLU attorneys faced their own challenges.

In part, Collyer questioned whether one or two of the slain U.S. citizens were simply “unintended” collateral damage from strikes aimed at someone else. In that case, she said, while the deaths “may be tragic,” they do not necessarily raise the same constitutional questions as those raised by the death of an intended target.

More broadly, Collyer suggested Friday it might be “a stretch” and “highly unusual” to let a lawsuit proceed that aims to find top U.S. military and national security officials personally liable for constitutional violations.

The lawsuit claims the lethal drone strikes violated the dead men’s Fifth Amendment due process rights, as well as Fourth Amendment rights against unreasonable search and seizure. Although government officials typically enjoy sovereign immunity, lawsuits may proceed against individuals for violation of a “clearly established” constitutional right.

“There is no ‘Leon Panetta exception’ to the Constitution,” ACLU attorney Hina Shamsi said.

Hauck countered that “we don’t want these counterterrorism and national security officials distracted by the threat of litigation.”

Anwar al Awlaki was born in 1971 in New Mexico. He moved to Yemen with his parents in 1978, later returning to the United States to earn degrees from Colorado State University and San Diego State University.

Though never publicly indicted, he was said by U.S. officials to have played a key role in “setting the strategic direction” for al Qaida in the Arabian Peninsula.

Samir Khan was born overseas but became a U.S. citizen in 1998. He attended community college in North Carolina before returning to Yemen in 2009. He was never publicly indicted, though U.S. officials described him as a “propagandist” for al Qaida.

Abdul Rahman Anwar Awlaki was born in Denver and moved to Yemen in 2002. Subsequent media reports stated that the missile strike that killed him was aimed at another individual, who reportedly survived the attack.

The 67-year-old Collyer has generally not been sympathetic to other national security challenges. Appointed to the bench by President George W. Bush and currently a member of the Foreign Intelligence Surveillance Court, Collyer earlier this week upheld the forced feeding of Guantanamo Bay detainees. Two years ago, she rejected an ACLU effort to obtain the CIA’s drone strike documents through a Freedom of Information Act request.

“I do not consider this a particularly easy set of questions,” Collyer said Friday.