A federal judge said Friday that she finds "disconcerting" the Obama administration's position that courts have no role in a lawsuit over the 2011 drone-strike killings of three U.S. citizens in Yemen, including an al-Qaida cleric.
U.S. District Court Judge Rosemary M. Collyer made the comment at a hearing on a government motion to dismiss the lawsuit. The suit was filed by relatives of the three men killed in the drone strikes, charging that the attacks violated the Constitution. It named as defendants then-Defense Secretary Leon Panetta, then-CIA Director David Petraeus and two commanders in the military's Special Operations forces, and seeks unspecified compensatory damages.
Collyer didn't say which way she would rule on the motion but repeatedly expressed concerns over the government's argument, saying she was "really troubled" by it.
U.S.-born al-Qaida leader Anwar al-Awlaki and Samir Khan, an al-Qaida propagandist, were killed in a drone strike in September 2011. Al-Awlaki's 16-year-old son, Abdulrahman, was killed the following month. Al-Awlaki had been linked to the planning and execution of several attacks targeting U.S. and Western interests, including a 2009 attempt on the Detroit-bound airliner and a 2010 plot against cargo planes.
The government has argued that the matter is best left to Congress and the executive branch, not judges, and that courts have recognized that the defense of the nation is best left to those political branches.
"You're saying there is no courthouse door where this goes through," Collyer told deputy assistant attorney general lawyer Brian Hauck. The judge repeatedly pressed Hauck to say what checks and balances the president faces, at one point saying in exasperation, "There's a man who won't be taken off message."
When Hauck mentioned the constitutional structure as one such constraint, Collyer replied that the Constitution sets out three branches of government, including the judiciary — "the one that's usually yelled at and not given any money."
She added: "I consider us a nation of laws, and everybody from the president down to homeless people have to follow the law."
Hauck noted that President Barack Obama, at his speech in May to the National Defense University, said he didn't think it was constitutional for the government to target and kill any U.S. citizen without due process.
"Where was the due process in this case?" asked Collyer, an appointee of President George W. Bush.
Hauck said there were checks in place, including reviews done by the executive branch.
"No, no, no, no, no," Collyer retorted. "The executive is not an effective check on the executive" when it comes to protecting constitutional rights.
Hauck said Congress is also briefed on the drone attacks. He added that U.S. officials should be allowed to do their job without the threat of litigation hanging over their actions.
Pardiss Kebriaei, a lawyer for the Center for Constitutional Rights — which is representing the relatives along with the American Civil Liberties Union — called the government's arguments "not just wrong;they're dangerous." She said the government can kill a 16-year-old U.S. citizen (al-Awlaki's son) without any explanation. Attorney General Eric Holder wrote in a letter to Senate Judiciary Committee Chairman Patrick Leahy this year that the teen was not "specifically targeted" by the U.S.
The lawsuit was filed by Nasser al-Awlaki — Anwar's father and the teen's grandfather — and by Sarah Khan, Samir Khan's mother. In a New York Times op-ed piece this week, Nasser al-Awlaki wrote that two years after his grandson's death, the government still hasn't explained why he was killed. He wrote that the teen was born in Denver and came to live with him when he was seven, and left home in 2011 in search of his father.
"The government has killed a 16-year-old American boy," he wrote. "Shouldn't it at least have to explain why?"
The high-profile case attracted a rare fully-packed courtroom. When Collyer walked into the room, she said, "Holy cow! This is a really serious matter, so I shouldn't say holy cow, but holy cow!"
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