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Obama Administration invokes state secrets privilege in the case of Anwar al-Aulaqi

Anwar al-Aulaqi

Anwar al-Aulaqi

The Washington Post reports:

When senior Obama administration officials invoked the state secrets privilege Saturday to dismiss a lawsuit brought on behalf of U.S.-born cleric Anwar al-Aulaqi, they declared in federal court that the case threatened to expose secret military and intelligence operations against al-Qaeda’s overseas network.

In a 60-page filing, the government asked U.S. District Judge [John] Bates to dismiss a lawsuit filed by civil rights groups retained by Aulaqi’s father seeking to block his Yemen-based son’s placement on the CIA and Joint Special Operations Command capture-or-kill list of suspected terrorists.

The filing also asked the court to dismiss the case without debating the merits of any future actions potentially taken against Aulaqi on the grounds that targeting in wartime is a matter for presidents, and that Aulaqi’s father did not have legal standing to bring the case.

Civil rights groups filed a suit last month to halt the targeting of Aulaqi, arguing that such an action outside a war zone and absent an imminent threat amounted to an extrajudicial execution order against a U.S. citizen.

In an effort to keep secret particular operations in Yemen, Defense Secretary Robert M. Gates said classified “information concerning whether or not U.S. armed forces are planning to undertake military actions in a foreign country, against particular targets, under what circumstances, for what reasons and pursuant to what procedures or criteria” cannot be disclosed without seriously harming national security.

CIA Director Leon Panetta sought to withhold “any information, if it exists, that would tend to confirm or deny any allegations in the complaint pertaining to the CIA.”

Director of National Intelligence James R. Clapper Jr. in his declaration cited Aulaqi’s leadership role in al-Qaeda in the Arabian Peninsula and a Dec. 25 bombing plot against a Detroit-bound jetliner.

At least since the Reynolds case, an invocation of state secrets has seemed to be a trump card that the Executive Branch can play. In Reynolds the Supreme Court noted that “even the most compelling necessity [that is, a claim that the information is necessary for one of the parties] cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.”  And if those secrets lie at the heart of the case, courts can dismiss the entire suit.

Judge John D. Bates

Judge John D. Bates

At some level this approach make much sense. We would not want law suits relating to the conduct of military operations to require the disclosure of information critical to the success of that operation. Who would countenance a law suit immediately prior to June 6, 1944 that would have required the disclosure of information about the D-Day attack? But on the other hand, with the expansion of the concept of the battlefield and the notion of a “permanent” war against terror, how often should the cloak of military secrets be used to bar adjudication of cases that involve the rights of persons– especially American citizens? I don’t have the immediate answer.  But it would not surprise me if Judge Bates might be looking to introduce a new balancing test that could be used to address this challenge.  Bates, who is Chief Judge of the Foreign Intelligence Surveillance Court, understands the importance of maintaining secrets, but he also understands the importance of checking broad claims of Executive power. In numerous cases, Bates has rejected what he believed to be overly broad claims of both the Bush and Obama Administrations. One might note, for example, Maqaleh v. Gates, in which Bates rejected the Administration’s claim that detainees at Bagram Air Base did not have habeas rights. And even though the D.C. Circuit overruled Bates, his decision is an excellent example his ability to balance the competing claims of the Executive Branch and individuals.

(For more discussion of this case, check out my friend Ari Kohen’s post over at Running Chicken.)

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.