Federal judge questions government drone program

Kevin Johnson | USA TODAY

WASHINGTON — A federal judge expressed deep reservations Friday about the authority of the government to carry out targeted killings of Americans in counterterrorism drone strikes abroad and appeared to reject a Justice Department argument that the courts had no role in one of the most controversial parts of the nation's security strategy.

U.S. District Judge Rosemary Collyer did not immediately rule on a government request to dismiss legal challenges to the killings of three Americans, including al-Qaeda leader Anwar al-Awlaki and his 16-year-old son, brought by civil rights advocates and Anwar's father, Nasser al-Awlaki. But she strongly questioned the government's assertion that the courts were "not in a position to second-guess'' security officials when faced with an imminent threat.

"Your argument is that the court has no role in this — none, none none,'' U.S. District Judge Rosemary Collyer told Brian Hauk, deputy assistant attorney general of the Justice Department's Civil Division. "I find that a little disconcerting. The scope of your argument concerns me. It gobbles up all the air in the room. ... The most important part of the United States is that it is a nation of laws.''

The advocates, representing the ACLU, the Center for Constitutional Rights and Anwar's father, allege that the killings of al-Awlaki, Abdulrahman al-Awlaki and Samir Khan, the force behind the influential jihadist magazine known as Inspire, violated U.S. law.

"The killings were part of a broader program of 'targeted killing' by the United States outside the context of the armed conflict and based on vague legal standards, a closed executive process and evidence never presented to the courts,'' the groups said.

Earlier this year, Attorney General Eric Holder acknowledged that four Americans had been killed in counterterrorism drone strikes since 2009, including the al-Awlakis and Khan.

Holder said then that only one of the four, Anwar al-Awlaki — the operational leader of al-Qaeda's affiliate in the Arabian Peninsula — was specifically targeted in the drone operations against al-Qaeda. Khan was killed with Anwar al-Awlaki on Sept. 30, 2011, and al-Awlaki's son was killed in a separate drone strike two weeks later. Hauk said the deaths of Khan and the younger al-Awlaki occurred as the government targeted other operatives.

Hauk echoed the administration's earlier justification for lethal force against U.S. citizens, saying the action is lawful when such targets are considered senior al-Qaeda operatives in foreign countries who pose an "imminent threat of violent attack'' against the U.S. and whose capture is not feasible.

"This is not the thing that arises again and again,'' Hauk said, arguing that the government's drone operations against Americans have been limited. "This is extraordinary.''

But Collyer said she also was troubled that there were few checks outside of the government's executive branch and Congress when decisions on targeting are made.

"The executive (branch) is not an effective check on the executive with respect to a person's constitutional rights,'' the judge said. "You cannot ask the executive to check himself.

"Your argument has no end to it,'' she said.