A Justice Department lawyer on Monday urged a federal judge in Washington to throw out a suit that challenges the government's alleged secretive effort to assassinate a radical cleric reportedly hiding in Yemen.
The American Civil Liberties Union brought the suit in August on behalf of the father of cleric Anwar al-Aulaqi, a U.S. citizen the federal government has designated a global terrorist and a leader of Al-Qaida in the Arabian Peninsula. Lawyers for al-Aulaqi's father, Nasser al-Aulaqi, are seeking an injunction to block the government from killing Anwar al-Aulaqi. The attorneys argue that a person targeted for assassination has due process rights to challenge his designation on the list.
In September, Justice Department attorneys filed papers in Washington federal district court seeking the dismissal of the suit. DOJ attorneys, including Douglas Letter, who argued the motion to dismiss in court on Monday, said al-Aulaqi's father lacks standing to bring the suit either as a third party or a next of friend. The government has also asserted the state secrets privilege and claimed the case poses political questions regarding national security that judges are forbidden to answer.
More than 100 spectators watched the oral argument in the U.S. District Court for the District of Columbia. Assistant Attorney General Tony West of the Civil Division and other top Justice attorneys attended the hearing, held in the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse downtown.
In court, Letter, a senior DOJ Civil Division lawyer who specializes in national security, repeated several times that the government neither confirms nor denies the existence of a so-called "kill list." Letter also said that al-Aulaqi is more than capable of communicating with lawyers and can therefore bring a case on his own, not through his father.
Government lawyers argue that al-Aulaqi has no desire to avail himself of the protections of the courts in the United States. Letter said that if Anwar al-Aulaqi emerges from hiding and surrenders, any threat of an assassination is over. An attorney for Nasser al-Aulaqi, Jameel Jaffer of the ACLU, said Anwar al-Aulaqi will not expose himself to the possibility of indefinite detention without charge or trial.
In arguing for a standard to challenge designation on a kill list, Jaffer said the questions raised in the litigation are not entirely different than the analysis judges perform in the Guantánamo Bay detainee cases to determine a prisoner's ties to al-Qaida.
Jaffer also said the al-Aulaqi case marks the first time the government has invoked the state secrets privilege in a matter of life or death. In court, Letter urged the presiding judge to dismiss the case on standing grounds and not reach the state secrets question.