The U.S. Government on Friday asked a federal judge to dismiss a lawsuit over the killing of three American citizens in drone strikes in Yemen earlier this year: alleged al-Qaeda in the Arabian Peninsula leader Anwar al-Awlaki, his son Abdulrahman, and alleged AQAP magazine editor Samir Khan.
The administration also threatened to invoke the State Secrets Privilege if the suit is not dismissed on other grounds. The privilege, which 2008 presidential candidate Barack Obama regularly blasted the Bush administration for invoking, allows the government to seek dismissal of a suit if it could expose national security secrets.
In the motion to dismiss, Justice Department lawyers argue that the necessity for the strikes and the viability of any alternatives is a question beyond the proper purview of the courts.
“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 motion said.
“Moreover, they ask this Court to pass judgment on the Executive’s purported battlefield and operational decisions in that conflict-namely, to determine whether lethal force was the most appropriate option available; if so, what sort of lethal force to employ; and whether appropriate measures were taken to minimize collateral damage. Each of these issues is a ‘quintessential source’ of political questions.”
News reports and the lawsuit filed in July by the family members indicate that Khan was a collateral casualty of the September strike that killed the elder al-Awlaki, and the junior al-Awlaki was a collateral casualty of an October strike aimed at an Egyptian named Ibraham al-Banna. Politico
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 Province
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 Province
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 U.S.” The Province
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.” The Washington Post
The year before al-Awlaki’s death, a judge threw out an earlier lawsuit filed by his father seeking to prevent the U.S. from targeting his son. In that ruling, U.S. 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. The Washington Post