Glenn Greenwald has expressed most of my feelings on the Justice Department's response to the ACLU/CCR lawsuit seeking to enjoin the U.S. from killing extremist cleric Anwar al-Awlaki without trial. The state-secrets doctrine, though, is only one of the government's arguments, so I'll just try to summarize their case here.
Standing: The government argues that because al-Awlaki can step forward and assert his rights to due process whenever he wants, his father has no standing to sue on his behalf. Moreover, they argue that his statements exhorting Muslims to kill Americans show that he is capable of communicating a desire to assert those rights if he chose to. The administration also argues that because the existence of the "kill list" isn't proven, the plaintiff can't argue that they'd suffer direct harm if the injunction isn't in place.
That said, it's hard to imagine that if al-Awlaki did decide to turn himself in, the administration wouldn't assert the authority to hold him indefinitely, having already decided they can kill him as a member of an enemy force.
AUMF/Self-Defense: The administration says that it is drawing its authority to kill al-Awlaki from the 2001 Authorization to use military force, because he is a member of al-Qaeda in the Arabian Peninsula, which as an affiliate of AQ is covered by the AUMF, even though AQAP was formed after 9/11. It's worth mentioning that a number of Bush lawyers don't buy this argument. The administration also asserts the authority to kill under the international law of self-defense, my analysis of State Department Legal Adviser Harold Koh's arguments in this matter is here.
He has it coming: Since al-Awlaki is a member of an organization against which Congress has supposedly declared war, he can't possibly think he isn't subject to "military style rules of engagement."
He's guilty: This isn't specifically asserted in the brief, but it's implicit. The government quotes al-Awlaki's extremist exhortations at length, and repeatedly points out that the ACLU/CCR haven't tried to argue that al-Awlaki isn't a member of AQAP, as though the burden is on them to prove he's innocent rather than on the government to prove he's guilty.
If you grant the injunction, people will die: Might as well quote from the brief itself here.
If the court were to enter such relief, urgent and time-sensitive efforts to protect the nation from threats posed by enemy terrorist organizations would proceed under the shadow of imprecise injunctive commands, which could have unforeseen and potentially disastrous consequences—including the loss of life of U.S. forces or U.S. citizens targeted for future terror attacks.
Hard to imagine a judge doesn't take that pretty seriously.
Courts have no business here: The government repeatedly asserts that the courts are "not equipped" to review "real-time, heavily fact-dependent decisions made overseas by military and other officials on the basis of complex and sensitive intelligence, tactical analysis and diplomatic considerations." These are battlefield decisions. Of course, part of what the ACLU/CCR are attempting to challenge is the idea that the planet is the battlefield. The government counters that such a decision is a political one, not one that should be made by the courts.
If the executive is going beyond its limits, Congress can act: The government argues that executive power isn't "unlimited" because its powers come from Congress, and Congress can limit them if it so chooses. Lucky for the administration that Congress defines "executive power grabs" as expansions of the welfare state for people who have no jobs or health insurance or the appointment of presidential advisers while agency nominees are stalled by a permanent filibuster in the Senate.
It's not arbitrary! The government rejects the ACLU/CCR argument that targeting someone for killing absent a criminal conviction is "arbitrary."
There are many aspects of military and national security operations in which the government does not publicly disclose the criteria that guide its actions, but that hardly means that in all such operations the government acts “arbitrarily.” The President has a constitutional duty to take care that the law is faithfully executed, and he and the other defendants here take that obligation very seriously, endeavoring at all points to comply with all applicable domestic and international laws. The laws themselves are not secret.
Right, the laws aren't secret, just the process by which they're supposedly being followed.
Finally, the government asserts that the program itself is a state secret. There's no question that the decision in Mohamed v. Jeppesen Dataplan Inc., figured in the administration's decision to invoke this defense -- it's the first case cited in this section. The other arguments have been in the public domain for a while, stated by supporters of the administration's policy like Ben Wittes and Kenneth Anderson.
I think it's really easy to get sucked into acquiescing to this kind of authority out of the belief that terrorists are really scary, or that such powers only apply to "the bad guys." On an individual basis, some of these arguments may seem really reasonable. But ultimately, like Greenwald and Marcy Wheeler, I can't get past the fact that what they add up to is the idea that the president can have someone executed on his say-so based on mere suspicion of a crime, as long as it declares doing so a state secret. We're so frightened of terrorism that we forget that there's a reason democracies limit the government's legitimate use of force, particularly against their own citizens. It's hard to imagine a more direct or final deprivation of liberty without due process.
I'd only add that whether or not al-Awlaki is a very bad person is irrelevant to the question -- which is whether or not the president has the authority to kill anyone he wants with no judicial review based on having simply labeled them a terrorist. If due-process rights only applied to "good people," they wouldn't be rights, and if the government can deprive you of such rights merely by labeling you a "bad person," then ultimately none of us is safe.
