In February, multiple media outlets reported that the Obama administration had a list of US citizens it was targeting for death. Topping the hit list, according to the reports, was Anwar al-Awlaki, an Al Qaeda propagandist hiding out in Yemen who is accused of masterminding the Fort Hood and Christmas Day terror attacks. So in August, two civil liberties groups and al-Awlaki’s father, Nasser, filed suit in federal court in an attempt to force the Obama administration to disclose the legal rationale it is using to target al-Awlaki for death. On Tuesday, a judge dismissed the case, finding that Nasser al-Awlaki doesn’t have the legal right to sue on his son’s behalf. For now, it seems, the federal courts will defer to the Obama administration’s implicit assertion that it has an unreviewable power to target and kill US citizens that it believes to be terrorists.
The decision, by Judge John Bates of the DC Circuit, was widely anticipated. (When the lawsuit was filed in August, I wrote a post explaining all the reasons why it was likely to fail.) Bates’ acknowledgement that “this is a unique and extraordinary case” that presents “fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure,” and that “vital considerations of national security and of military and foreign affairs (and hence potentially of state secrets) are at play” will come as cold comfort to civil libertarians, who had hoped that the court would find a way to address those very issues. As Marcy Wheeler notes, Judge Bates’ decision also echoes his July 2007 ruling dismissing former CIA operative Valerie Plame Wilson’s attempt to sue Bush administration officials for blowing her cover. In that case, Bates also highlighted the key issues raised by the case before throwing it out on technical grounds.
Even if Bates had ruled in the plaintiff’s favor on standing, though, the case would still have had major obstacles. While Bates doesn’t officially reach the matter of the so-called “state secrets” privilege (the government asked him to rule on state secrets only as a last resort), he does indicate that he would have ruled in the government’s favor on that question if he had. The message to the ACLU and CCR is clear: even if you had resolved your standing issues, you would have still lost to the government’s trump card.
One of the more interesting details in this ruling is that Bates bought the government’s argument that the younger al-Awlaki has meaningful access to the US legal system: supposedly, he can just go to the US embassy or email potential lawyers without fear of assassination. But as Marcy notes, even if Anwar al-Awlaki did turn himself in, Bates’ promise to rule against him on state secrets grounds would mean he would still have no effective way to challenge his presence on the Obama administration’s reported “target list.”
Other plaintiffs on the list—and reports have made it clear that it contains other US citizens—will face the same “state secrets” problem. You can’t challenge your presence on the secret government assassination list because the list is secret! This despite the fact that government officials leaked the existence of the list and the name of one of the targets to multiple national media outlets. As I’ve written before, the government can take your life, but it can never take your steel plants.
So what do civil libertarians do now? Press hard for the release of the Office of Legal Counsel opinions (assuming they exist) justifying the legal rationales for the Obama administration’s assassination program. And continue trying to get the government to explain what, exactly, it takes to get on or off the target list. That proved to be impossible inside the courtroom. It may prove just as difficult outside of it.
UPDATE: The ACLU has released a statement. Here’s an excerpt:
“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation,” said Jameel Jaffer, Deputy Legal Director of the ACLU. “It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty. It’s worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context. We continue to believe that the government’s power to use lethal force against American citizens should be subject to meaningful oversight by the courts.”
This post has been edited for clarity since it was first published.