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Judge tosses lawsuit over drone deaths of Americans

Representatives of three Americans killed in drone strikes in Yemen in 2011—including Al Qaeda in the Arabian Peninsula leader Anwar Al-Awlaki—cannot pursue a lawsuit alleging that the killings violated their constitutional rights, a federal judge ruled Friday.

U.S. District Court Judge Rosemary Collyer dismissed a suit brought on behalf of Al-Awlaki, his 16-year-old son Abdulrahman and alleged AQAP propagandist Samir Khan. Civil liberties groups filed the litigation on behalf of family members of the dead Americans, arguing that they were unconstitutionally deprived of life without due process of law and that the Obama Administration illegally maintained a so-called "kill list" of Americans targeted for death at the hands of U.S. government operations overseas.

"The persons holding the jobs of the named Defendants must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the President and with the concurrence of Congress. They cannot be held personally responsible in monetary damages for conducting war," Collyer wrote.

In a flight of legal nuance, Collyer rejected the Obama Administration's arguments that she lacked authority to delve into the case because it presented a "political question" not suited to the courts. But she ultimately concluded that the elder Al-Awlaki's claim should not go forward because it would require the courts to recognize a new remedy for Americans killed in U.S. government action abroad and at least three appeals courts have indicated it is inadvisable for judges to allow claims of that sort without explicit authorization from Congress.

"In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to question, and does not make a finding concerning, Defendants’ actions in dealing with AQAP generally or Anwar Al-Aulaqi in particular," Collyer declared. "Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief," she added, referring to a line of cases discussing when courts should allow damage lawsuits against government officials.

In her 41-page ruling (posted here), Collyer expressed no sympathy whatsoever for the elder Al-Awlaki, whom she unequivocally branded as a nefarious Al Qaeda leader.

"Had he been captured alive, Anwar Al-Aulaqi might have been charged with treason....The fact is that Anwar Al-Aulaqi was an active and exceedingly dangerous enemy of the United States, irrespective of his distance, location, and citizenship," she wrote, tying him in particular to the attempted bombing of a Northwest Airlines fight headed to Detroit on Christmas Day in 2009.

Collyer did not make entirely clear why what she clearly viewed as ample evidence of the elder Al-Awlaki's guilt was relevant to the legal case, or whether an intentional killing of an individual with a more ambiguous record could give rise to a lawsuit that could meet legal muster.

The judge, who was appointed by President George W. Bush, did evince concern that allowing the case to proceed would make U.S. government officials more reticent to take action against significant threats. "Allowing Plaintiffs to bring a Bivens action against Defendants would hinder their ability in the future to act decisively and without hesitation in defense of U.S. interests," she wrote.

At other times, though, Collyer suggested courts should have some role in making sure the interests of American citizens aren't trampled. "The powers granted to the Executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a U.S. citizen of his life without due process and without any judicial review," Collyer wrote. "The interest in avoiding the erroneous deprivation of one’s life is uniquely compelling."

The judge actually found it easier to dismiss the claims on behalf of Khan and the younger Al-Awlaki. She ruled that because they had been unintentionally killed as bystanders, there was no viable claim for them to pursue. "Mere negligence does not give rise to a constitutional deprivation," she wrote. (Khan was known internationally as the editor of AQAP's "Inspire Magazine," but U.S. officials have said he was not targeted for death because he was not considered an operational figure in the terror group.)

A lawyer involved in pressing the suit expressed disappointment in Collyer's ruling.

"The district court's decision raises important concerns about the Executive's targeting killing practices, but ultimately accepts at face value the government's claims about Anwar Al-Aulaqi, without the very adversarial hearing the Constitution requires before taking someone's life. It completely fails to give appropriate consideration to the killing of Abdulrahman Al-Aulaqi, an admittedly innocent 16 year old boy," said Baher Azmy of the Center for Constitutional Rights. "The Constitution cannot permit the killing of U.S. citizens based on the government's untested claim of dangerousness."

"This is a deeply troubling decision that treats the government's allegations as proof while refusing to allow those allegations to be tested in court. The court's view that it cannot provide a remedy for extrajudicial killings when the government claims to be at war, even far from any battlefield, is profoundly at odds with the Constitution,” said another attorney for the plaintiffs, Hina Shamsi of the American Civil Liberties Union. “In holding that violations of U.S. citizens' right to life cannot be heard in a federal courtroom, the court abdicated its constitutional role."

In 2010, prior to the drone strikes that killed the Al-Awlakis and Khan, a different federal judge dismissed a similar lawsuit filed by Anwar Al-Awlaki's father. Judge John Bates said the case raised important legal issues, but that the father lacked standing to bring the legal challenge and that the issues were ultimately "political questions" not susceptible to resolution by the courts. His ruling was not appealed.