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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.

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The two-hour hearing in federal court arises at a time of increased concern within the Obama administration about the threat posed by Islamic militants based in Yemen. Authorities recently intercepted remote control bombs in packages air freighted from Yemen to Europe and the US.

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Al Qaeda in the Arabian Peninsula is suspected of involvement in attacks against tourists and foreign workers in Yemen. It is also believed to be behind an August 2009 attempt to assassinate Saudi Interior Minister Prince Mohammed bin Nayef and an April attempt on the life of the British ambassador to Yemen.

Lethal action against Awlaki would not be the first time US officials have engaged a controversial killing of an American citizen in Yemen. In 2002, a hellfire missile fired by a predator drone destroyed a car traveling on a remote highway in Yemen. Among the six occupants was US citizen Kamal Derwish, a suspected Al Qaeda recruiter from Buffalo, N.Y.

Mr. Derwish was wanted in connection with the investigation of six young Muslims in Lackawanna who he convinced to go to Afghanistan to train with Al Qaeda.

The US has increasingly used Predator missile strikes in Afghanistan and Pakistan to target Al Qaeda and Taliban leaders.

The ACLU lawsuit focuses exclusively on the alleged targeting of Awlaki in Yemen. It seeks to draw a distinction between operations in Afghanistan, a zone of active armed conflict, and Yemen, where the ACLU says no such armed conflict currently exists.

Constitutional protections for US citizens

In the absence of an armed conflict, the US government must comply with constitutional protections enjoyed by American citizens, the ACLU lawyers say. The Fourth Amendment bars the government from engaging in excessive use of force against American citizens. The Fifth Amendment prohibits the government from depriving a citizen or his or her life without due process of law.

The use of lethal force may be justifiable, according to the ACLU, if the individual poses an imminent threat to the life or safety of others and there is no nonlethal alternative open to the government to neutralize the threat. The lawyers say these conditions do not apply to Awlaki.

The ACLU brief quotes a 2004 US Supreme Court decision written by then Justice Sandra Day O’Connor. “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens,” she wrote.

Government lawyers warn that judges should leave to the president and his advisers decisions of how best to shield the country from potential terrorist attacks. “Such judicial interference in fact-intensive decisions concerning how to protect national security could have unforeseen and potentially catastrophic consequences,” the government brief says.

Defendants in the case are President Obama, Defense Secretary Robert Gates, and CIA Director Leon Panetta.

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