Legal Commentary

Administration Invokes State Secrets in Targeted Killing Case

By Jonathan H. Adler

The Washington Port reports the Justice Department ?reluctantly? invoked the state secrets doctrine in seeking dismissal of a lawsuit challenging the alleged targeting of Anwar al-Aulaqi, a radical Islamic cleric (and U.S. citizen) believed to be in Yemen.

Justice Department spokesman Matthew Miller said that the groups are asking ?a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action ? all on behalf of a leader of a foreign terrorist organization.?

Miller added, ?If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions.? . . .

In its 60-page filing, the Justice Department cites state secrets as the last of four arguments, objecting first that Aulaqi?s father lacks standing, that courts cannot lawfully bind future presidents? actions in as-yet undefined conflicts, and that in war the targeting of adversaries is inherently a ?political question.?

Full post as published by The Volokh Conspiracy on September 25, 2010 (boomark / email).