US wants suit over US-born cleric’s killing dismissed


Published — Sunday 16 December 2012

Last update 16 December 2012 10:08 pm

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WASHINGTON: The Obama administration urged a federal court Friday to dismiss a damage lawsuit over the drone-strike killings of three US citizens in Yemen last year, including an Al-Qaeda cleric.
In a court filing, the Justice Department said the issue is best handled by the government’s political branches, not the judiciary.
US-born Al-Qaeda leader Anwar Al-Awlaki and Samir Khan, an Al-Qaeda propagandist, were killed in a drone strike in September 2011. Al-Awlaki’s son, Abdulrahman, was killed the following month.
The lawsuit filed by relatives of the three, charged that senior CIA and military officials violated the Constitution and international law when they authorized strikes by the unmanned drones. It named as defendants Defense Secretary Leon Panetta, then-CIA Director David Petraeus and two commanders in the military’s Special Operations forces.
The suit seeks unspecified compensatory damages.
“Courts repeatedly have recognized that the political branches, with few exceptions, have both the responsibility for and the oversight of the defense of the nation and the conduct of armed conflict abroad,” the Justice Department said. “The judiciary rarely interferes in such arenas. In this case, plaintiffs ask this court to take the extraordinary step of substituting its own judgment for that of the executive.”
The government said the lawsuit is “rife with separation-of-powers, national defense, military, intelligence and diplomatic concerns. Judicial restraint is particularly appropriate here, where plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the US.”
The lawsuit was filed in July by Nasser Al-Awlaki (Anwar’s father and Abdulrahman’s grandfather) and by Sarah Khan (Khan’s mother). They are represented by the American Civil Liberties Union and the Center for Constitutional Rights. The suit claimed that none of those killed posed a concrete, specific and imminent threat of serious physical injury; that “means short of lethal force” were available; and that the government did not take “all feasible measures to protect bystanders.”
“Plaintiffs thus invite this court to determine whether an individual in Yemen whom the executive branch had already declared a leader of an organized armed enemy group, and a foreign operative of that group, posed a sufficient threat to the United States and its citizens to warrant the alleged use of missile strikes abroad within the context of an armed conflict and the executive’s national self-defense mission,” the Justice Department responded. The government said that situation was rife with political questions.
“A judicial finding that the alleged strikes were illegal would show a lack of deference regarding policy choices made by the political branches,” the government said. “It would take the judiciary well beyond its traditional role and would thrust it into the realm of policymaking.”
At the time of the September 2011 drone attack, President Barack Obama had declared Al-Awlaki’s killing a “major blow” to Al-Qaeda’s most dangerous affiliate and had called him “the leader of external operations for Al-Qaeda in the Arabian Peninsula.”
The year before Al-Awlaki’s death, a judge threw out an earlier lawsuit filed by his father seeking to prevent the US from targeting his son. In that ruling, US District Judge John Bates said he didn’t have the authority to review the president’s military decisions and Al-Awlaki’s father didn’t have the legal right to sue to stop the United States from killing his son. But Bates also said the “unique and extraordinary case” raised vital considerations of national security and for military and foreign affairs.

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