The DoJ has finally responded to the joint ACLU/CCR lawsuit against the US government for its assassination program with a US citizen on the hit list. The memorandum advances about five legal arguments for dismissing the suit and I started explaining the first three in a posting on my own blog.
I'll just cut to the chase right now: there is a very Orwellian claim made by the government in one of its arguments and I'll excerpt the section from my post that describes it.
The government argues that court enforcement of any injunction would be impossible as a practical matter. It gives a hypothetical scenario in which Awlaki is eventually killed by the government after a court order mandates that the threat he poses must be imminent and all alternatives to lethal force sought before killing him. The government argues that this would not only put the court in a difficult role of analyzing the concreteness and imminence of the threat posed by Awlaki at the time of his death, but it would also (here's where it gets Orwellian) "call into question whether the action was justified" and "pit the Judiciary against the Executive in assessing and acting upon sensitive intelligence and diplomatic considerations in matters of national security and foreign policy." In the words of Baker (para. 221), such a judicial intervention would inhibit the ability to put forward "a single-voiced statement of the Government’s views."
The government is explicitly arguing that judicial oversight of the killing of an American citizen would be a bad thing specifically because the court might find the killing to be unjustified.
To recap: the Supreme Court ruled back in 1962 that certain topics are off limits to the judiciary because of the political question doctrine. One of the arguments it made was that judicial oversight of these "political questions" would put the branches of government at conflict with each other in important matters such as foreign policy in national security. To repeat the ruling's argument again: having the court second guess the decisions of the executive would hamper its ability to put forth "a single-voiced statement of the Government’s views" to the world at large.
The Obama administration is now using this to put forth a hypothetical scenario in which the court may find its killing of Awlaki to be unjustified. This would be bad--the administration argues--because it would impede the monolithic stance of the US government in global affairs.
Strange times we are living in. I mean God forbid we allow the rest of the world to think that we have any doubts in our government about killing one of our own citizens without any due process.