WASHINGTON — A federal judge on Friday sharply and repeatedly
challenged the Obama administration’s claim that courts have no power
over targeted drone killings of American citizens overseas.
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Muhammad ud-Deen, via Associated Press
Anwar al-Awlaki in Yemen in 2008. He was among three
Americans killed in drone strikes by the United States in 2011.
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Judge Rosemary M. Collyer of the United States 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 Qaeda in the Arabian
Peninsula; Mr. 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 Qaeda branch.
Judge Collyer said she was “troubled” by the government’s assertion that
it could kill American 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 among the public. The
debate, including the first public discussions of drone strikes by
Congress and a major speech by President 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 signing off on
strikes.
Mr. Hauck acknowledged that Americans targeted overseas do have rights,
but he said they could not be enforced in court either before or after
the Americans 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.
Judge 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 Judge 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
on Wednesday in The New York Times, and Sarah Khan, mother of Samir
Khan. Only Anwar al-Awlaki was deliberately targeted, officials say; Mr.
Khan was killed in the same strike, while Abdulrahman al-Awlaki was
killed by mistake in a strike 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 C.I.A. director; Leon E. Panetta, the former
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. Mr. Hauck said 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, Ms. 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 Mr. Hauck referred to the Constitution, Judge
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.”
