Once again last week, the Obama administration went to court arguing that its conduct is above the law. Just as Eric Holder’s Justice Department has argued that the government cannot be sued over its indiscriminate wiretapping of Americans or regarding the open-ended detention of Muslims at the prison in Guantánamo Bay, Cuba, on Friday it claimed that the courts have no power to inquire about using drones to kill American citizens abroad.

The claim was made during a hearing on the government’s motion to dismiss a lawsuit filed by relatives of three Americans killed in 2011 by drone strikes on Yemen: Anwar al-Awlaki, the cleric with Al Qaeda in the Arabian Peninsula (AQAP); his 16-year-old son, Abdulrahman, who had no terrorist involvement; and Samir Khan, a 30-year-old North Carolinian who was a propagandist for AQAP.

Because lawsuits directled against the government often fail on technical grounds, the relatives are suing neither the military nor the CIA, which carried out the strikes. Instead, they filed civil rights suits against four officials in charge of the agencies at the time: David Petraeus, the former CIA director; Leon Panetta, the former defense secretary; and two successive heads of the Joint Special Operations Command, Adm. William McRaven and Lt. Gen. Joseph Votel.

A lawsuit like this is called a Bivens action, after a 1971 Supreme Court case allowing citizens to sue government officials personally for violating their constitutional rights.

Judge Rosemary M. Collyer of the United States District Court for the District of Columbia, a conservative Republican appointed by George W. Bush in 2002, described herself as “troubled” by the government’s claim that it could kill U.S. citizens it decided were dangerous with no judicial review.

“Are you saying that a U.S. citizen targeted by the United States in a foreign country has no constitutional rights?” Collyer asked Brian Hauck, a deputy assistant attorney general. “How broadly are you asserting the right of the United States to target an American citizen? Where is the limit to this?”

Although Hauck admitted that Americans overseas do have rights, he contended that they could not be enforced in court because “Courts don’t have the apparatus to analyze” those rights and balance them against the government’s anti-terrorism goals. Suggesting that Congressional oversight was adequate, Hauck also claimed, echoing past statements by Holder, that there are “checks” inside the executive branch to make sure the killings are legally justified.

That elicited a sharp response from Judge Collyer. “No, no, no,” she said. “The executive is not an effective check on the executive.” Rejecting the claim that judges are incapable of weighing complex national security issues, she pointed out that the Constitution prescribes three separate branches of government, insisting that “You’d be surprised at the amount of understanding other parts of the government think judges have.”

Noting that “the most important thing about the United States is that it’s a nation of laws,” Collyer, who also sits on the Foreign Intelligence Surveillance Court, stated that she would “do a lot of reading and studying and thinking and try to reach a decision as soon as I can.”

-Matt Bewig

To Learn More:

Judge Challenges White House Claims on Authority in Drone Killings (by Scott Shane, New York Times)

Secret U.S. Government Memo Justifies Assassinations of American Citizens (by Noel Brinkerhoff, AllGov)

Federal Judge Refuses to Order Release of Memo Justifying Obama’s Assassination Program (by Noel Brinkerhoff and David Wallechinsky, AllGov)

Obama Administration Claims It Can’t Be Sued over Indiscriminate Wiretapping (by David Wallechinsky and Noel Brinkerhoff, AllGov)