Washington – Responding to a lawsuit challenging the legality of including an American citizen on a secret government “kill list,” a Justice Department lawyer argued in federal court on Monday that the US government has the legal authority to target and kill a US-born Islamic cleric believed to be hiding in Yemen.
Douglas Letter, the Justice Department’s terrorism litigation counsel, while stressing that he was neither confirming nor denying the existence of such a list, told US District Judge John Bates that Congress in the wake of the 9/11 attacks had authorized the executive branch to use all “necessary and appropriate” force against Al Qaeda and associated groups.
He said the Obama administration has determined that the targeted killing of Anwar al-Awlaki would be legal and justified to safeguard US national security.
“If we use lethal force we do so consistent with the law,” Mr. Letter said.
His arguments were part of a government effort to win dismissal of the lawsuit, which is being argued by the American Civil Liberties Union. ACLU lawyer Jameel Jaffer told the judge that the administration’s plan would violate constitutional protections and international law.
“What the government is doing is imposing the death penalty without trial,” Mr. Jaffer said.
“The consequence of accepting the government’s argument is that the president will have the unreviewable authority to order the assassination of any citizen of the United States” without judicial review, he said. “It is a question that the president alone will decide.”
Alarmed at that broad assertion, Judge Bates invited Letter back up to the podium to respond.
“It is ridiculous to say our argument leads to the conclusion that the president can assassinate who he wants,” Letter said.
He said the administration’s efforts are aimed “against somebody who is formally and officially designated as a global terrorist, who is attempting to carry out operations continually in order to kill Americans.”
Mr. Awlaki is a leader of the Yemen-based group Al Qaeda in the Arabian Peninsula, which claimed responsibility for the makeshift bombs recently discovered in air cargo bound for the US.
On Monday, he was quoted in a video displayed on militant websites urging Muslims to take up arms against Americans.
“Don’t consult with anybody in killing the Americans,” he said in the video. “Fighting the devil does not require a fatwa, nor consultation, nor prayers seeking divine guidance. They are the party of Satan and fighting them is the obligation of the time,” he said.
Awlaki is said to have played a role in preparing Umar Abdulmutallab, the Christmas bomber, for his aborted effort to down a jetliner near Detroit in 2009.
The ACLU lawsuit was filed by Awlaki’s father, Nasser, on behalf of his son, whose whereabouts are unknown. He is said to have gone into hiding in January and is believed to be in a remote section of eastern Yemen.
The lawsuit does not seek to prevent the government from carrying out targeted killings. Instead, the ACLU is asking Judge Bates to examine the government’s criteria for placing Awlaki on the alleged kill list.
To justify lethal action, the ACLU suit says, the government must be able to demonstrate that the targeted killing is necessary to prevent a direct and imminent threat to public safety. In addition, the suit says, the government must be able to show there are no non-lethal options available to neutralize a threat from Awlaki.
The government is asking Bates to throw the lawsuit out, arguing that Awlaki’s father does not have legal standing to bring the challenge. Letter said if Awlaki wanted to challenge the US government’s alleged “kill list” he could turn himself in to the authorities and litigate the issue himself.
Letter warned the judge that if he allowed the suit to move forward he would be placing the judiciary in the position of having to second-guess real-time decisions made by the president and his military and intelligence advisors.
Judge Bates said federal judges are already engaged in a similar enterprise, examining whether Guantanamo detainees are being held in accord with the law. In addition he said the government must obtain judicial approval before it can engage in electronic surveillance of US citizens overseas.
Jaffer said the lawsuit doesn’t seek to impose judicial review of real-time decisions of the president. “We are not asking for the court to get involved at all,” he said. “Just to set general limits.”
In contrast, Jaffer said, the government’s position is to exclude judicial oversight from the process. “They are not just arguing that the court has no role to play now,” he said. “They are arguing that he courts have no role to play, period.”
Judge Bates peppered the lawyers during the two-hour hearing with pointed questions exploring the full range of both sides’ arguments. He said he would work quickly to issue a decision, but set no deadline.