WASHINGTON -- Courts cannot second-guess drone strikes that kill U.S. citizens overseas, an Obama administration lawyer argued Friday.
A Republican-appointed judge sounded dubious about the expansive claim, saying she was "really troubled" by assertions that courts are completely shut out of the drone strike debate. But for other legal reasons, the judge sounded hesitant about a lawsuit targeted at top military and intelligence officials for violating the constitutional rights of U.S. citizens blown up in foreign lands.
"There are instances where wrongs are done, but for one reason or another, they cannot be remedied in a civil suit," U.S. District Judge Rosemary M. Collyer said.
The American Civil Liberties Union and the Center for Constitutional Rights, representing a victim's family member, have sued former Defense Secretary Leon Panetta and other former officials over the two separate drone strikes that killed three U.S. citizens in Yemen. The Obama administration wants the lawsuit dismissed. The lawsuit is the latest challenge to the administration's secretive war-fighting practices that have mobilized skeptics on both the right and left.
On Sept. 30, 2011, missiles fired from a remotely piloted aircraft killed U.S. citizens Anwar al-Awlaki and Samir Khan, along with at least two other people traveling with them in Yemen. Two weeks later, another drone strike at an open-air restaurant in Yemen killed seven people, including Abdul Rahman Anwar Awlaki, the 16-year-old son of Awlaki.
The same drone strikes against U.S. citizens that incited the lawsuit heard Friday also sparked a 13-hour filibuster in March from Sen. Rand Paul, R-Ky. A Gallup Poll in March found that while 62 percent of U.S. residents surveyed supported drone strikes against terrorists, 52 percent opposed strikes against U.S. citizens.
During the 80-minute oral argument Friday before a standing-room-only crowd, Judge Collyer sounded highly dubious about the administration's most far-reaching claim -- that judges should steer entirely clear of military and national security decision-making.
"The executive is not an effective check on the executive when it comes to constitutional rights," Judge Collyer told Deputy Assistant Attorney General Brian Hauck. "The argument you are making is tied to an assertion of authority [in which] the court has no role. I find that a little disconcerting."
Neither Mr. Hauck's declaration that the decision to strike at a target overseas is "outside the court's competence" and "unfit for adjudication," nor his insistence that an "extensive executive review" and "robust congressional oversight" ensure that rights are protected, seemed to reassure Judge Collyer.
But while Mr. Hauck struggled in his efforts to establish a judicial no-fly zone over the administration's drone policy, ACLU attorneys faced their own challenges.
In part, Judge Collyer questioned whether one or two of the slain U.S. citizens were simply "unintended" collateral damage from strikes aimed at someone else. In that case, she said, while the deaths "may be tragic," they do not necessarily raise the same constitutional questions as those raised by the death of an intended target. More broadly, she suggested Friday that it might be "a stretch" and "highly unusual" to let a lawsuit proceed that aims to find top U.S. military and national security officials personally liable for constitutional violations.
The lawsuit claims the lethal drone strikes violated the dead men's Fifth Amendment due process rights, as well as Fourth Amendment rights against unreasonable search and seizure.