STEVE INSKEEP, host:
It's MORNING EDITION from NPR News. Good morning. I'm Steve Inskeep.
RENEE MONTAGNE, host:
And I'm Renee Montagne.
The search for an accused terrorist raises a troubling legal question. The question is whether it's legal for the CIA to kill an American citizen.
INSKEEP: That question comes up because the agency maintains what is called a Capture or Kill list. People on that list are accused terrorists or Taliban leaders, such as the people hit by drone strikes in Pakistan.
MONTAGNE: At least one person the U.S. is targeting is a U.S. citizen. His name is Anwar al-Awlaki. He's a radical cleric who has been linked to terrorist plots against the U.S. and is believed to be hiding in Yemen.
INSKEEP: Now his father is planning to sue the U.S. government for putting his son on the kill list.
NPR's Dina Temple-Raston has the story.
DINA TEMPLE-RASTON: The case all started with a meeting between two ACLU lawyers and Awlaki's father in Yemen.
Mr. VINCE WARREN (Center for Constitutional Rights): Mr. Awlaki was concerned about the public statements about his son being on a targeted killing list and wanted to know whether that was legal and whether there were any avenues that he could take in order to stop that from happening.
TEMPLE-RASTON: Vince Warren is the executive director of the Center for Constitutional Rights, which is working with the ACLU on the case.
Mr. WARREN: His view was that the United States stands for the idea of giving people due process before it decides to kill them.
TEMPLE-RASTON: The ACLU and CCR said that was their view too. So in July, the father, Nasser al-Awlaki, hired them to file a lawsuit that would challenge whether his American-born son can be on the CIA's Capture or Kill list. There are still procedural hurdles for the lawsuit to go forward, but if it does it would be the next step in a progression of terrorism cases.
In the past, the courts have focused on the government's power to detain or interrogate a suspect, or to gather intelligence. Now, for the first time, a case would look at the government's authority to summarily kill someone.
Professor SAM RASCOFF (New York University School of Law): From the standpoint of trying to create a kind of legal buzz around the issue of targeted killing, filing such a lawsuit could potentially be very powerful and effective.
TEMPLE-RASTON: Sam Rascoff is a professor at NYU Law School and used to run intelligence analysis at the New York City Police Department.
Professor RASCOFF: Here the executive is claiming the power to go ahead and target al-Awlaki for assassination without going through anything that resembles traditional legal process.
TEMPLE-RASTON: And, Rascoff says, that needs to be tested in court. Anwar al-Awlaki was put on the Capture or Kill list earlier this year - shortly after a young Nigerian tried to blow up a U.S. airliner on Christmas Day. The Nigerian man told U.S. authorities that Awlaki had helped him launch the attack.
Juan Zarate, a former deputy national security advisor in the Bush administration, says Awlaki's links to episodes like that have made him a legitimate target.
Mr. JUAN ZARATE (Transnational Threats Project and Homeland Security and Counterterrorism Program): When an individual like Anwar al-Awlaki joins the enemy force in an ongoing war, which the Obama administration calls a war on al-Qaida in a global context, there is very little that American citizen can do in court to challenge what may happen to that individual in the field of battle.
TEMPLE-RASTON: Critics say the problem is Awlaki isn't in a traditional field of battle - he's not in Iraq or Afghanistan - he's in Yemen, so those definitions shouldn't apply. That's the heart of the argument over the target list. Where is the field of battle? People familiar with the case expect lawyers will likely get permission to represent Awlaki soon. So the next question is where the case will go from there. And most analysts say it won't get very far. The Obama administration is likely to invoke the State Secrets Act and stop it in its tracks.
Again, NYU's Rascoff.
Prof. RASCOFF: It is very likely that the government would make an argument that the state secrets doctrine controls here and that even for a court to entertain this lawsuit would compromise national security. I think it's almost 100 percent likely the government would make that kind of argument and, frankly, that a court would receive it well.
TEMPLE-RASTON: So far, the Obama administration has refrained from discussing the case. When White House spokesman Robert Gibbs was asked about it yesterday, he kept saying he was not at liberty to discuss intelligence matters.
Dina Temple-Raston, NPR News, New York. Transcript provided by NPR, Copyright NPR.
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