A federal judge considering a constitutional challenge to drone strikes that killed three U.S. citizens in Yemen says she's "troubled" by the idea that the courts have no role to play in what's essentially a political dispute.
Over nearly two hours of arguments in her standing-room-only Washington, D.C. courtroom, Judge Rosemary Collyer repeatedly pressed the Obama administration about its claim to a broad right to use lethal force against Americans engaged in conflict overseas, demanding more than once that government lawyers put a "fence" around their position.
"The argument you are making is tied to an assertion that the court has no role in this — none, none, none," Collyer said. "And I find that disconcerting."
The case was filed by the American Civil Liberties Union and the Center for Constitutional Rights to challenge the killing of radical U.S.-born cleric Anwar al-Awlaki by a 2011 drone strike in Yemen. He had never been publicly charged with a crime, though national security officials say he was tied to several plots against U.S. interests. Another American who died alongside Awlaki was Samir Khan, a onetime editor of Inspire, the online jihadi magazine produced by al-Qaida in the Arabian Peninsula. A few weeks later, a separate drone strike in Yemen killed Awlaki's 16-year-old son, Abdulrahman.
The Justice Department says only the elder Awlaki was specifically targeted for killing, meaning the other two Americans essentially died as collateral damage. Awlaki's father, Nasser, wrote an op-ed this week in The New York Times demanding an explanation for the deaths.
Government lawyers argue that allowing the case to proceed against senior military officials and the former leaders of the Pentagon and the CIA would interfere with executive branch prerogatives and subject the defendants to second-guessing of sensitive military and intelligence decision-making.
Brian Hauck, arguing for the Justice Department, pointed out that decisions on targeting "are made at the highest levels of the executive branch, with robust consultation with Congress."
But the judge didn't sound convinced. "No, no, no, no," Collyer said. "The executive is not an effective check on the executive when it comes to individual constitutional rights."
Advocates for the Awlaki family say the U.S. government violated the victims' constitutional rights under the Fourth and Fifth Amendments to the Constitution — which prohibit unlawful search and seizure and deprivation of life and liberty without due process of law.
"The defendant's arguments aren't just wrong," said Pardiss Kebriaei of the Center for Constitutional Rights. "We think they're dangerous."
Kebriaei said under the Fourth Amendment, the judge should question whether the strike in which Abdulrahman died was reasonable. "An operation that targets a civilian eating area in plain view, outside of hostilities, that kills seven people including two minors is objectively unreasonable," she said.
Hina Shamsi of the ACLU told the judge that moving the case forward would "deter unconstitutional conduct" by government officials. Without that option, Shamsi said, "plaintiffs really have nothing. They have no other source of remedy."
Judge Collyer said that was true. "But there are instances where wrongs are done but for one reason or another, they cannot be remedied in a civil suit," she said.
And she left some lawyers in the courtroom with the impression that this case may be one of them.