Obama invokes 'state secrets' claim to dismiss suit against targeting of U.S. citizen al-Aulaqi
Spencer S. Hsu
September 25, 2010
The Obama administration urged a federal judge early Saturday to dismiss a lawsuit over its targeting of a U.S. citizen for killing overseas, saying that the case would reveal state secrets.
The U.S.-born citizen, Anwar al-Aulaqi, is a cleric now believed to be in Yemen. Federal authorities allege that he is leading a branch of al-Qaeda there.
Government lawyers called the state-secrets argument a last resort to toss out the case, and it seems likely to revive a debate over the reach of a president's powers in the global war against al-Qaeda.
Civil liberties groups sued the U.S. government on behalf of Aulaqi's father, arguing that the CIA and the Joint Special Operations Command's placement of Aulaqi on a capture-or-kill list of suspected terrorists - outside a war zone and absent an imminent threat - amounted to an extrajudicial execution order against a U.S. citizen. They asked a U.S. district court in Washington to block the targeting.
In response, Justice Department spokesman Matthew Miller said that the groups are asking "a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action - all on behalf of a leader of a foreign terrorist organization."
Miller added, "If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions."
In a statement, lawyers for Nasser al-Aulaqi condemned the government's request to dismiss the case without debating its merits, saying that judicial review of the pursuit of targets far from the battlefield of Afghanistan is vital.
"The idea that courts should have no role whatsoever in determining the criteria by which the executive branch can kill its own citizens is unacceptable in a democracy," the American Civil Liberties Union and Center for Constitutional Rights said.
"In matters of life and death, no executive should have a blank check," they said.
The government filed its brief to U.S. District Judge Robert Bates just after a midnight Friday deadline, blaming technical problems, and the late-night maneuvering underscored the political and diplomatic stakes for President Obama. His administration announced last year that it would set a higher bar when hiding details of controversial national security policies.
Justice Department officials said they invoked the controversial legal argument reluctantly, mindful that domestic and international critics attacked former president George W. Bush for waging the fight against terrorism with excessive secrecy and unchecked claims of executive power.
The Obama administration has cited the state-secrets argument in at least three cases since taking office - in defense of Bush-era warrantless wiretapping, surveillance of an Islamic charity, and the torture and rendition of CIA prisoners. It prevailed in the last case last week, on a 6 to 5 vote by the U.S. Court of Appeals for the 9th Circuit.
A senior Justice official, speaking on condition of anonymity, said the administration is engaging in "a much narrower use of state secrets" than did its predecessor, which cited the argument dozens of times - often, the official said, to "shut down inquiries into wrongdoing."
In its 60-page filing, the Justice Department cites state secrets as the last of four arguments, objecting first that Aulaqi's father lacks standing, that courts cannot lawfully bind future presidents' actions in as-yet undefined conflicts, and that in war the targeting of adversaries is inherently a "political question."
Robert M. Chesney, a national security law specialist at the University of Texas School of Law, said that Obama lawyers would undoubtedly prefer not to stoke the state-secrets debate, or to risk judicial review of its claim to a borderless battlefield.
"The real big issue here is . . . are we only at war in Afghanistan, or can the U.S. government lawfully use war powers in other cases, at least where the host nation consents or there is no host government?" Chesney said.
"You're trying to avoid a judicial ruling on the merits of the whole issue," Chesney said, adding, "But at the end of the day, if it's your best argument in a case you want to win, you're going to make that argument."
How the CIA ran a secret army of 3,000 assassins
Julius Cavendish in Kabul
23 September 2010
The US Central Intelligence Agency is running and paying for a secret 3,000-strong army of Afghan paramilitaries whose main aim is assassinating Taliban and al-Qa'ida operatives not just in Afghanistan but across the border in neighbouring Pakistan's tribal areas, according to Bob Woodward's explosive book.
Although the CIA has long been known to run clandestine militias in Afghanistan, including one from a base it rents from the Afghan president Hamid Karzai's half-brother in the southern province of Kandahar, the sheer number of militiamen directly under its control have never been publicly revealed.
Woodward's book, Obama's Wars, describes these forces as elite, well-trained units that conduct highly sensitive covert operations into Pakistan as part of a stepped-up campaign against al-Qa'ida and Afghan Taliban havens there. Two US newspapers published the claims after receiving copies of the manuscript.
The secret army is split into "Counterterrorism Pursuit Teams", and is thought to be responsible for the deaths of many Pakistani Taliban fighters who have crossed the border into Afghanistan to fight Nato and Afghan government forces there.
There are ever-increasing numbers of "kill-or-capture" missions undertaken by US Special Forces against Afghan Taliban and foreign fighters, who hope to drive rank-and-file Taliban towards the Afghan government's peace process by eliminating their leaders. The suspicion is that the secret army is working in close tandem with them.
Although no comment has been forthcoming, it is understood that the top US and Nato commander in Afghanistan, Gen David Petraeus, approves of the mission, which bears similarities to the covert assassination campaign against al-Qa'ida in Iraq, which was partially credited with stemming the tide of violence after the country imploded between 2004 and 2007.
The details of the clandestine army have surprised no one in Kabul, the Afghan capital, although the fact that the information is now public is unprecedented. There have been multiple reports of the CIA running its own militias in southern Afghanistan.
The operation also has powerful echoes of clandestine operations of the 1990s, when the CIA recruited and ran a militia inside the Afghan border with the sole purpose of killing Osama bin Laden. The order then that a specially recruited Afghan militia was "to capture him alive" – the result of protracted legal wrangles about when, how and if Osama bin Laden could be killed – doomed efforts to assassinate him before 9/11.
NY groups seek DC order blocking targeted killings
August 30 2010
NEW YORK (AP) — Two New York-based civil liberties groups have sued the federal government, saying its targeted killings of U.S. citizens overseas is unconstitutional.
The American Civil Liberties Union and the Center for Constitutional Rights filed the lawsuit Monday in U.S. District Court for the District of Columbia. Defendants include President Barack Obama and the CIA director.
The lawsuit was filed for the father of a U.S.-born cleric believed to be hiding in Yemen. It seeks a court order declaring the Constitution prohibits the government's targeted killings of U.S. citizens.
The cleric is believed to have helped inspire the attempted bombing of a Detroit-bound airliner Christmas Day. The Obama administration cited his al-Qaida role when it placed him on the CIA's list of assassination targets.
The Department of Justice hasn't returned a message seeking comment.