U.S. invokes state secrets privilege in execution order case

Rosemary Lane | Secret Courts | Feature | September 28, 2010

The Obama administration invoked the state secrets privilege last weekend in an effort to dismiss a federal lawsuit challenging the government's alleged plan to kill a U.S. citizen abroad.

Aided by civil liberties groups, plaintiff Nasser al-Aulaqi sued the U.S. government earlier this year on behalf of his son, U.S. citizen Anwar al-Aulaqi, seeking to stop the government from “intentionally killing" his son outside a war zone. The lawsuit asserts that the government's action amounts to an extrajudicial execution order.

The government will neither confirm nor deny their plans regarding Anwar al-Aulaqi, who is believed to be in Yemen. But in a motion to a federal district court in Washington, D.C., late Friday, the Obama administration claimed that allowing the lawsuit to continue would reveal state secrets and improperly allow a court to govern the president’s security decisions.

The government doesn’t invoke the state secrets privilege lightly, the government's memo claims. But proceeding with the case would entail revealing military operational details and, thus, pose “significant harm to the national security of the United States," the government argued.

Ben Wizner, an attorney for the American Civil Liberties Union who represents Nasser al-Aulaqi, said that if the court accepts the government's state secrets argument, it would mean that his client isn’t entitled to discovery or the right to be in court.

“The only reason we’re in court at all is because they had a concerted media and political strategy to let everyone in the world know that they’re trying to kill this guy,” he said. “They could have kept that a secret."

“Their entire brief amounts to the argument that courts should have no role whatsoever in establishing the legal standard of governing when the executive branch can take the life of a U.S. citizen,” Wizner said. “They’re really asking for a blank check.”

The government can invoke the state secrets privilege at any point in litigation to try to to prevent access to privileged information or to throw out an entire case. According to a Secrecy Report Card from OpentheGovernment.org, the government used the privilege four times in 2009.

Most recently, the U.S. Court of Appeals in San Francisco (9th Cir.) accepted the government's claim of the privilege in a 6-5 vote in a case involving the alleged torture of CIA prisoners. The administration's invocation of the privilege in the Ninth Circuit case drew criticism of Obama after his administration vowed to be more transparent and Attorney General Eric Holder announced a narrowing of the privilege last year.

Robert Chesney, a national security law specialist at the University of Texas School of Law, said the privilege was used similarly in the Ninth Circuit case because on both occasions the administration was trying to prevent courts from having a role in deciding the government’s decisions.

“This, of course, is precisely the scenario about which people get most uncomfortable with the privilege,” he said.

State secrets is an important government tool dating back to the early 1800’s, according to Robert Turner, executive director of the Center for National Security Law at the University of Virginia. He said the administration will and should continue to use it.

“When it requires the disclosure of secrets I not only assume he’ll keep using it, but I think he would be betraying his oval office to be abandoning it because it’s a well-established part of our constitutional system,” Turner said.

The court will reconvene on Oct. 22 to decide whether to proceed with the al-Aulaqi case, Wizner said.