WASHINGTON The government on Monday urged a judge to dismiss a lawsuit that seeks to end a program authorizing the killing of accused militants like American Muslim cleric Anwar al-Awlaki and said al-Awlaki should turn himself in.
Testing President Barack Obama's war powers, the American Civil Liberties Union and Center for Constitutional Rights sued to halt the program and for the courts to decide under what conditions U.S. citizens who the government claims pose terrorism threats can be killed.
The Obama administration has refused to officially confirm the program exists, though U.S. officials have said the CIA has been given the green light to capture or kill al-Awlaki, who is a U.S. citizen hiding in Yemen and has been tied to several plots against the United States in the last year.
The lawsuit was filed on behalf of al-Awlaki's father and they argued that the cleric could not exercise his rights under the U.S. Constitution, including to due process, because he was on the purported kill list.
Obama's Justice Department lawyers disputed that and urged the case be thrown out.
"It is totally within the control of al-Awlaki, whether he is under the threat of force or not, he can avoid that by presenting himself" to authorities, Justice Department lawyer Douglas Letter told U.S. District Judge John Bates.
The cleric, who was born in New Mexico and lived in Virginia until leaving the country shortly after the September 11, 2001, attacks, has said he would not turn himself in. Yemeni authorities have also sought to either capture or kill him.
During a three-hour court hearing, the lawyers for the two sides traded arguments over whether the case could proceed and whether the president could order the assassination of any American who posed a potential threat to the country.
Letter repeatedly refused to confirm or deny that the targeted kill program even exists, but said that the suggestion by the civil liberties groups that the president could order the assassination of any American was "just absurd".
Lawyers for the ACLU and CCR countered that the president's authority was too broad and that the program wrongly relies on authorization issued by the U.S. Congress after the September 11, 2001, that ordered military force against terrorism suspects.
"The president is exercising authority beyond AUMF," said Jameel Jaffer of the ACLU, referring to the "Authorization for Use of Military Force Against Terrorists." He said that authority "has limits to it."
He also said al-Awlaki's father had the right to sue because his son could not come forward since he could also face indefinite detention without trial by U.S. authorities.
Letter said that for the courts to intervene would be wrongly interfering with the president's powers to protect the country. "This goes to the very core powers of the president as commander-in-chief," he said.
While the civil liberties groups have stressed that the issue is about the appropriate checks and balances on a president's executive powers, al-Awlaki's involvement in several plots against the United States looms large.
U.S. officials have described al-Awlaki as having a leadership role in al Qaeda in the Arabian Peninsula. In addition to communicating with the U.S. Army major who gunned down 13 at a base in Texas last year, he has issued Internet videos and writings to urge attacks against the United States.
The al Qaeda affiliate has said it was behind the plot by a Nigerian man who tried to blow up a U.S. airliner on Christmas with a bomb hidden in his underwear. The group also said it was involved in the plot last month to send package bombs via U.S. cargo carriers.
A video by al-Awlaki surfaced on the Internet on Monday in which he urged Muslim scholars to promote jihad against U.S. and Israeli interests in the region, including attacks on foreign forces in Muslim countries.
Bates did not tip his hand on how he would rule but said he expected to issue a decision in the coming weeks.
(Editing by Cynthia Osterman)