Source; New York Times, By CHARLIE SAVAGE
WASHINGTON — The Obama administration, fresh off a victory in persuading federal judges to dismiss a torture case for fear of revealing state secrets, is divided over using similar tactics to try to block a lawsuit over government efforts to kill an American citizen accused of ties to Al Qaeda.
The administration’s legal team is debating how aggressive it should be in a brief responding to the lawsuit, which is due Sept. 24. The suit, filed last month, seeks an injunction that would prevent the targeted killing of Anwar al-Awlaki, a radical Muslim cleric who is accused of playing a leading role for Al Qaeda’s branch in Yemen.
Justice Department lawyers are circulating a draft brief with several potential arguments for dismissing the case, and lawyers from national security agencies have met to discuss what should go into the final version. But they have not reached a consensus, according to officials familiar with the discussions, because the arguments seen as strongest also carry significant political and legal risks.
“There are a lot of cross-cutting things going on here, and they have to be very careful about how they litigate this,” said Jack Goldsmith, who was a senior Justice Department lawyer in the Bush administration. “It’s not just a question of winning the case. There is the public diplomacy side, and there are implications for everything else they are doing in the war on terrorism: detention and targeting and other things, too, I imagine.”
The lawsuit was filed by Mr. Awlaki’s father, Nasser al-Awlaki, who is represented by the American Civil Liberties Union and the Center for Constitutional Rights. It contends that designating a United States citizen for killing outside of a war zone, without an imminent threat, amounts to an extrajudicial execution, and it disputes the notion that battlefield law applies far from Afghanistan.
There is widespread agreement among the administration’s legal team that it is lawful for President Obama to authorize the killing of someone like Mr. Awlaki — regardless of his citizenship — if he is found in an ungoverned place or in a country that grants permission. (The details of any arrangement with Yemen are unclear.)
Mr. Awlaki has not been indicted or gone to trial to prove that he played an operational role in terrorist attacks. Still, he has released videos calling on Muslims to kill Americans, and the Treasury Department has labeled him a “specially designated global terrorist.” The man who tried to blow up a Detroit-bound jet on Dec. 25 is believed to have told interrogators that Mr. Awlaki directed him to do so.
Nevertheless, many in the administration are reluctant to air in court the case that Mr. Awlaki is waging war against the United States, in part because they do not want to concede that judicial review is appropriate for executive branch decisions on targeted killings.
Instead, they are seeking to have the lawsuit dismissed without discussing its merits. For example, officials say, the brief is virtually certain to argue that Mr. Awlaki’s father has no legal standing to file a lawsuit on behalf of his son.
To strengthen the case, they are considering at least two other potential arguments, each with a downside.
The first would involve asking the judge to dismiss the case because it could reveal classified information. Under the “state secrets doctrine,” the government can seek to withhold evidence or block lawsuits related to national security.
The doctrine was the focus of the 6-to-5 ruling by an appeals court in California last week. Reversing an earlier decision, it threw out a lawsuit by former C.I.A. prisoners who contended that they had been tortured after the agency flew them to other countries for interrogation.
The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.
“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.
But other officials have cited last week’s ruling as a reason to invoke the state secrets doctrine in the Awlaki lawsuit. They have also argued that few people are likely to perceive its use in this case as covering up an injustice.
Mr. Rivkin said he favored a different argument: a declaration that in war who can be targeted — and where — is a “political question” for the executive branch to decide, not judges.
Inside the administration, that argument is also seen as attractive. But invoking it could give the court an opportunity to reject the idea that an armed conflict with Al Qaeda exists in Yemen, said Matthew Waxman, who was the Pentagon’s top detainee affairs official under the second President Bush.
“The more forcefully the administration urges a court to stay out because this is warfare, the more it puts itself in the uncomfortable position of arguing we’re at war even in Yemen,” he said. “The worst outcome would be if the court rules that the president is not authorized to wage war against Al Qaeda beyond combat zones like Afghanistan.”
Still, Mr. Goldsmith, the former senior Justice Department official, noted that risking such a ruling would be nothing new: the administration has long argued, in response to habeas corpus lawsuits filed by Guantánamo Bay prisoners, that it can detain Qaeda suspects captured far from Afghanistan, in places like Bosnia and Mauritania.
Justice Department litigators have advocated making all potential arguments to maximize the chance of success. But other lawyers have urged caution, arguing that the government could win with a narrower approach. Many are ambivalent and have not yet taken a clear position.
Heightening the lawyers’ concerns, the lawsuit is before a federal district judge, John D. Bates, who has disagreed with the Justice Department’s assertions of executive power in several detention cases.
Whatever the final government brief says, Robert M. Chesney, a University of Texas law professor, said the lawsuit might force onto the table greater discussion of what the administration is doing and why it believes its actions are lawful.
“Of course, that defense doesn’t have to take place in a courtroom,” he said. “But where U.S. citizens are involved as targets, you have to anticipate that it may not be possible to entirely avoid putting the question before a judge to some extent