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Can US kill American-born cleric Anwar al-Awlaki? Judge to hear case.

American-born cleric Anwar al-Awlaki is hiding in Yemen, where he's a leader of Al Qaeda in the Arabian Peninsula. He's trained terrorist recruits and helped prepare the Christmas Day bomber.

By Staff writer / November 7, 2010

American-born cleric Anwar al-Awlaki is a leader of the Yemen-based group Al-Qaeda in the Arabian Peninsula.

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A federal judge is set to hear arguments on Monday in a lawsuit challenging an alleged secret Obama administration plan to use lethal force against an American-born Islamic cleric hiding in Yemen.

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The cleric, Anwar al-Awlaki, is a leader of the Yemen-based group Al Qaeda in the Arabian Peninsula. He has facilitated training camps in Yemen, encouraged new recruits, and helped prepare Umar Abdulmutallab in his attempt to blow up an airliner near Detroit on Christmas Day 2009, government lawyers say.

In July, US authorities listed Mr. Awlaki as a “specially designated global terrorist.” According to press reports, he is on a US government “kill list.”

RELATED: Yemen orders troops to 'forcibly arrest' Al Qaeda cleric Anwar al-Awlaki

The lawsuit, filed on behalf of Awlaki’s father by the American Civil Liberties Union, challenges the government’s authority to carry out the intentional killing.

Although the government has authority under certain circumstances to engage in the use of lethal force against American citizens deemed a threat to national security, those circumstances do not exist in the case of Awlaki, the lawsuit says.

ACLU lawyers are asking US District Judge John Bates to examine whether the Obama administration’s alleged plan to kill a US citizen, who has never been charged or convicted of a crime, violates constitutional safeguards and international law.

In response, government lawyers are asking Judge Bates to dismiss the lawsuit. While neither confirming nor denying the ACLU “kill list” accusation, they say Awlaki’s father, Nasser, lacks the necessary legal standing to bring the case.

They also argue that federal judges do not have authority to second-guess the executive branch in matters of warfare and foreign affairs. Justice Department lawyers say the issue of the possible use of force overseas against a terrorist organization is a question best left to the political branches of government rather than unelected judges.

Case involves authorization after 9/11

The lawyers say that Congress in the wake of the 9/11 attacks authorized the use of necessary and appropriate force against Al Qaeda and its affiliates. That congressional authorization applies both in Afghanistan against Al Qaeda and in Yemen against Awlaki, they say.

The government also seeks to invoke the state secrets privilege, saying the ACLU suit must be dismissed because any discussion of the kill list allegations in open court would disclose sensitive national security sources and methods.

ACLU lawyers object to the invocation of the state secrets privilege. They say if the government sought to prosecute Awlaki – rather than execute him without charge or trial – the state secrets claim would be barred.

“The government is seeking to impose the ultimate penalty [death] without trial, claiming a secrecy privilege that would be unavailable with trial,” writes ACLU lawyer Jameel Jaffer in his brief to Judge Bates. “It would be an odd and remarkable rule that would permit the government to avoid all judicial scrutiny simply by electing to bypass trial in favor of summary execution.”

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