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Judge rejects lawsuit to block killing of cleric

Awlaki targeted for instigating acts of terror

US citizen Anwar al-Awlaki is an anti-American cleric whose father has taken legal steps halt the US from assassinating him. US citizen Anwar al-Awlaki is an anti-American cleric whose father has taken legal steps halt the US from assassinating him.
By Nedra Pickler
Associated Press / December 8, 2010

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WASHINGTON — A judge yesterday threw out a lawsuit aimed at preventing the United States from targeting anti-American cleric Anwar al-Awlaki for death, but he questioned whether a president or his aides can unilaterally order a US citizen assassinated for terrorist activity.

US District Judge John Bates said in an 83-page opinion that he does not have the authority to review the president’s military decisions and Awlaki’s father does not have the legal right to sue to stop the United States from trying to kill his son. But Bates also said the “unique and extraordinary case’’ raised vital considerations of national security and for military and foreign affairs.

Among the stark and perplexing questions Bates said the case raises is why courts have authority to approve surveillance of Americans overseas but not their killing. And he questioned whether the president or his advisers can order the assassination of a US citizen without “any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization.’’

“The serious issues regarding the merits of the alleged authorization of the targeted killing of a US citizen overseas must await another day or another nonjudicial forum,’’ wrote Bates, an appointee of President George W. Bush and an Army veteran.

Awlaki, believed to be hiding in Yemen, has urged Muslims to kill Americans. He also has been linked to last year’s shooting at Fort Hood, Texas, and the attempted bombing of a US-bound flight last Christmas.

Obama administration officials have confirmed that Awlaki is on a capture or kill list, although the Obama administration declined to confirm or deny that in court proceedings.

The cleric’s father, Nasser al-Awlaki of Yemen, represented by the American Civil Liberties Union and the Center for Constitutional Rights, argued that international law and the Constitution prevent the administration from unilaterally targeting his son for death unless he presents a specific, imminent threat to life or physical safety and there are no other means to stop him. The suit against President Obama, Defense Secretary Robert Gates, and CIA Director Leon Panetta also tried to force the government to disclose standards for determining whether US citizens like his son, born in New Mexico in 1971 and raised in the United States, can be targeted for death.

“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 decides is a threat to the nation,’’ said Jameel Jaffer, ACLU deputy legal director. “It really would be difficult to conceive of a proposition more inconsistent with the Constitution. Every other presidential power is subject to checks and balances.’’

Administration officials argued the court has no legal authority to review the president as he makes military decisions to protect Americans against terrorist attacks.

Bates agreed, although somewhat reluctantly.

“To be sure, this court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the executive’s unilateral decision to kill a US citizen overseas is constitutionally committed to the political branches and judicially unreviewable,’’ Bates wrote. “But this case squarely presents such a circumstance.’’

Bates also said he must dismiss the case because Anwar Awlaki did not bring the suit himself.

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