Judge challenges White House claims over drone killings

Boston Globe – by Scott Shane

WASHINGTON — A federal judge on Friday sharply and repeatedly challenged the Obama administration’s claim that courts had no power over targeted drone killings of U.S. citizens overseas.

Judge Rosemary M. Collyer of the U.S. District Court here was hearing the government’s request to dismiss a lawsuit filed by relatives of three Americans killed in two drone strikes in Yemen in 2011: Anwar al-Awlaki, the radical cleric who had joined al-Qaida in the Arabian Peninsula; Awlaki’s 16-year-old son, Abdulrahman, who had no involvement in terrorism; and Samir Khan, a 30-year-old North Carolina man who had become a propagandist for the same al-Qaida branch.  

Collyer said she was “troubled” by the government’s assertion that it could kill U.S. citizens it designated as dangerous with no role for courts to review the decision.

“Are you saying that a U.S. citizen targeted by the United States in a foreign country has no constitutional rights?” she asked Brian Hauck, a deputy assistant attorney general. “How broadly are you asserting the right of the United States to target an American citizen? Where is the limit to this?”

She provided her own answer: “The limit is the courthouse door.”

The case comes to court at a time when both the legality and wisdom of the administration’s use of targeted killing as a counterterrorism measure have come under question in Congress and with the public. The debate, including the first public discussions of drone strikes by Congress and a major speech by President Barack Obama on May 23, has raised the possibility of a role for judges in approving the addition of Americans to the so-called kill list of suspected terrorists or in actually signing off on strikes.

Hauck acknowledged that Americans targeted overseas do have rights, but he said they could not be enforced in court either before or after they were killed. Judges, he suggested, have neither the expertise nor the tools necessary to assess the danger posed by terrorists, the feasibility of capturing them or when and how they should be killed.

“Courts don’t have the apparatus to analyze” such issues, so they must be left to the executive branch, with oversight by Congress, Hauck said. But he argued, as Attorney General Eric H. Holder Jr. has in the past, that there were multiple “checks” inside the executive branch to make sure such killings are legally justified.

Collyer did not buy it. “No, no, no,” she said. “The executive is not an effective check on the executive.” She bridled at the notion that judges were incapable of properly assessing complex national security issues, declaring, “You’d be surprised at the amount of understanding other parts of the government think judges have.”

Despite Collyer’s evident frustration with parts of the Obama administration’s stance, legal experts say the plaintiffs face an uphill battle. They are Nasser al-Awlaki, father and grandfather of two of the men killed, who wrote about their deaths Wednesday in The New York Times, and Sarah Khan, mother of Samir Khan. Only Anwar al-Awlaki was deliberately targeted, officials say; Khan was killed in the same strike, while Abdulrahman al-Awlaki was killed by mistake in a strike that officials say was intended for a suspected terrorist who turned out not to be present.

The relatives filed suit late last year, but not against the military and the Central Intelligence Agency, which carried out the strikes, because such lawsuits usually fail on technical grounds. Instead, they sued four officials in charge of the agencies at the time: David H. Petraeus, the former CIA director; Leon E. Panetta, the defense secretary; and two successive heads of the Joint Special Operations Command, Adm. William H. McRaven and Lt. Gen. Joseph L. Votel.

The lawsuit is known as a Bivens action, after a 1971 Supreme Court ruling that permitted citizens to sue government officials personally under some circumstances for violating their constitutional rights.

The government is asking that the lawsuit be dismissed on several grounds. Hauck said that decisions about targeted killing should be reserved to the “political” branches of government, the executive and legislative, not the judiciary. In addition, he said, allowing a lawsuit against top national security officials to proceed would set a dangerous and disruptive precedent.

“We don’t want these counterterrorism officials distracted by the threat of litigation,” he said.

Pardiss Kebriaei of the Center for Constitutional Rights and Hina Shamsi of the American Civil Liberties Union, representing the plaintiffs, argued that the claims had extraordinary importance because they involved the deaths of Americans at the government’s hands. “The entire goal of Bivens is deterrence,” to discourage officials from infringing the rights of Americans, Shamsi said.

“The court still has a role to play in adjudicating whether or not a citizen’s rights have been violated,” she said.

At one point, when Hauck referred to the Constitution, Collyer, 67, who was appointed by President George W. Bush and also serves on the Foreign Intelligence Surveillance Court, interrupted to note that the Constitution prescribed three branches of government, and that she represented one of them.

“The one that’s normally yelled at and not given any money,” she said, sounding as if she was not entirely joking. “The most important thing about the United States is that it’s a nation of laws.”

The judge said that she believed the case raised difficult questions and that she would “do a lot of reading and studying and thinking and try to reach a decision as soon as I can.”

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