Where else but in America would your involvement in numerous terrorist plots earn you both a spot on an international “most wanted” list and the pro bono assistance of legal activists in federal court?
Such is the situation involving Anwar al-Awlaki, a militant Islamist cleric based in Yemen. Al-Awlaki and his “al Qaeda in the Arabian Peninsula” group have been tied to the massacre at Fort Hood, the attempted Christmas Day airplane bombing over Detroit, and last month’s plot to blow up Chicago-bound cargo planes.
U.S. security officials’ authorization of lethal action against al-Awlaki inspired two “public interest” groups, the ACLU and the Center for Constitutional Rights (CCR), to file a constitutional challenge on behalf of al-Awlaki’s father.
The lawsuit, which seeks an injunction preventing attacks on al-Awlaki, opens an alarming new front in legal activists’ campaign to judicially impose their myopic view of “civil liberties” on U.S. anti-terror decisions.
Over the past nine years, these ideologues have, with the help of the courts, secured criminal defendant rights for enemy combatants; invalidated parts of the USA Patriot Act; and forestalled invaluable surveillance activities.
Rather than spending time deterring the next terrorist attack, government officials have had to defend detainment decisions, fight the disclosure of highly sensitive national security information, and judicially justify the transfer of terror suspects to other nations.
Now the ACLU and CCR are going one step further – they seek direct judicial involvement in military strategy. Their suit argues that because al-Awlaki is an American citizen (raised in New Mexico), no U.S. operation can take aim at him unless officials prove in court that he poses an “imminent” threat and there are no means other than lethal force that can reasonably neutralize the threat.
On November 8, a federal judge in Washington, D.C. devoted three hours to hearing arguments in this case. In its briefs and at the hearing, the Obama Administration urged the court to dismiss the suit based on the limited procedural ground that al-Awlaki’s father cannot lawfully “stand in the shoes” of his son as a plaintiff.
Such a dismissal would do little more than encourage activists to secure a better plaintiff and sue ain. That’s why Washington Legal Foundation, representing a group of retired military officers, filed a friend-of-the-court brief asking the court to reach the merits of the case.
The WLF argues the case should be disposed of on the grounds that the suit raises protected “state secrets,” and that decisions such as whom to target during wartime are not within the judicial branch’s authority.
Perhaps not coincidentally, on the very same day as his lawsuit was argued, al-Awlaki released a chilling video on jihadist websites, where he declared, among other things, “Do not seek any permission when it comes to the killing of the Americans . . . They are the party of the devil and fighting them is the personal duty of our times. We [have] reached that moment when it is either us or them.”
The unconventional war thrust upon America by fanatics like al-Awlaki has provided legal activists with a long-awaited opportunity to advance radical legal theories, which were previously relegated to scholarly journal articles and law school class hypotheticals. But when those ideas pique the interest of judges, they cease being academic curiosities and become live threats to national security.
For instance, suits like the one brought on behalf of al-Awlaki could severely curtail the use of unmanned Predator drones, leading to more U.S. military and civilian casualties once courts force anti-terror operations to rely on more land assaults.
Additionally, successful civilian court challenges to the detainment of terror suspects can return enemy soldiers to the battlefield. In fact, numerous former Guantanamo Bay detainees already populate the upper ranks of the Yemen-based al Qaeda group’s leadership.
America has reached a fork in the road, and the time has come for us to make a decisive choice. We can treat terrorists like common criminals who are entitled to Miranda rights and criminal trials, providing them an unparalleled platform for propaganda and a rich source of intelligence for the architects of future attacks.
Or we can be fully committed to ensuring the security of our nation by defeating misguided legal campaigns and returning control over national and homeland security decisions to the executive and legislative branches.
With so little margin for error, can America afford to have the judiciary and agenda-driven lawyers deciding how to keep us safe from foreign terrorism?
Examiner contributor Daniel J. Popeo is chairman and general counsel of the Washington Legal Foundation.
