In a little noticed filing at week's end, the US government made its first legal response to a challenge made by civil liberties groups about the Obama administration's secretive "Kill List" program by urging a federal court to dismiss the case, arguing that the courts should not interfere with Obama's declared authority that he can kill US citizens without congressional, judicial, or public oversight.
The case surrounds the targeted killing of three US citizens in Yemen last year, including Anwar Al-Awlaki, his 16-year-old son Abdulrahman and Samir Khan.
The ACLU and the Center for Constitutional Rights, who helped bring the suit on behalf of family members of those killed, said in a joint statement that the essence of the government’s argument was "that it has the authority to kill Americans not only in secret, but also without ever having to justify its actions under the Constitution in any courtroom."
"To claim, as the administration [has now done], that the courts have no role at all to play in assessing whether the government's targeted killings of Americans are lawful – even after the fact – simply cannot be squared with the due process clause," they said.
In the motion to dismiss, Justice Department lawyers made the case that any demands for judicial review are superseded by what the government said are necessary actions in protecting national security. It further argued that the court's desire to explore alternatives to assassination (versus possible capture) was not in its "proper purview".
Not only did the Obama administration push to have the case dismissed, as Politico's Josh Gerstein reports, the government lawyers "also threatened to invoke the State Secrets Privilege if the suit is not dismissed on other grounds."
As Gerstein explains, the "privilege, which 2008 presidential candidate Barack Obama regularly blasted the Bush administration for invoking, allows the government to seek dismissal of a suit if it could expose national security secrets."
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The move is deeply concerning to those who want to see a national dialogue around the United States' resurgent policy of assassination, especially as it relates to the new technology of unmanned drones that have the unfortunate habit of killing innocent bystanders as well the intended target or targets.
The specifics of the case heighten the urgency once again by the fact that in the lawsuit before the court—one brought by family members of US citizens killed by their own government in Yemen—questions the legality of killing Americans without due process or oversight.
"The president himself has acknowledged that the targeted killing program must be subject to more meaningful checks," said the ACLU and CRR. "But there is little evidence of that recognition in the brief filed by the government on Friday. If the court accepts the government's position, it is not only the current president but every future president who will wield the power to kill any American he or she deems to present a threat to national security, without ever having to explain that action to a judge. The Constitution requires more."
And Gerstein's report added:
In 2010, a federal judge in Washington dismissed a similar suit seeking to strike the elder Al-Awlaki from a purported "kill list" maintained by the U.S. Government. U.S. District Court Judge John Bates agreed that the dispute was not one well-suited to the courts, but he acknowledged that the suit raised serious questions. He pointed out the odd fact that the government would need judicial approval to wiretap Al-Awlaki but appeared to need no such approval to kill him.
The Justice Department has declined to confirm that Anwar Al-Awlaki was wanted on criminal charges at the time of his death. However, it has claimed he was a key player in the Christmas Day 2009 attempt to bring down a Delta Airliner arriving in Detroit from Amsterdam. He was also formally designated as a terrorist by the State Department.