An Appeal to President Obama's Better Side This is a blog post about excessive secrecy, unsanctioned killing and an administration that abuses power to block court actions aimed at imposing accountability and review on its policy making. I refer not to the Bush administration, but to the Obama administration, which has taken on many of its predecessor's most disturbing habits when it comes to security and secrecy, and made some of them worse. Kate Martin, director of the Center for National Security Studies, an expert on surveillance and detention, and a leading advocate for the rule of law in the so-called "war on terror," wrote a letter to President Obama on Tuesday imploring him to stop the Justice Department's knee-jerk invocation of national security to bar the courthouse doors to certain people with legitimate claims of wrong doing and harm. Her theory is that Mr. Obama has not been immersed in the litigation and that if he pays attention to it, he might order a different approach. I'm not sure that's true, but I hope she's right. The case she is focused on involves the administration's decision to kill Anwar al-Awlaki, an American citizen who became radicalized, moved to Yemen and established himself as a promoter of spurious religious justifications for terrorism and other forms of violence. Administration officials say they had evidence that he was in fact involved in supporting and planning terrorist operations; he was killed with a drone stroke in September 2011. A year later, another drone strike against an Awlaki associate killed Mr. Awlaki's 16-year-old son, also an American citizen. "On December 14, the Department of Justice is scheduled to reply to the lawsuit filed by their family of Anwar al-Aulaqi (her spelling) claiming that his constitutional rights were violated by being killed in Yemen," Ms. Martin wrote. We write to urge that your administration respond to the lawsuit in a manner that will enable judicial review of the legality of such killing and not seek dismissal of the lawsuit on the grounds that the question of legality is non-justiciable. Why is this necessary? Shouldn't it be routine for courts to review a case in which the president ordered an American citizen killed without any judicial or congressional review before or after the fact? Well, no, because the government has not officially admitted that Mr. Obama had Mr. Awlaki and the others killed. Since they don't admit the strikes ever happened, their position could be that the court can't take the case. It's not just Ms. Martin's fear of this sort of Joseph Heller outcome, or mine. This administration has taken an even more dangerous approach to invoking national secrets in courts than its predecessor, avoiding judicial review of actions and policies it would prefer not to have discussed. Ms. Martin argued passionately for Mr. Obama to instruct his lawyers not to take that position, and to let the case proceed. She wrote: We are confident that permitting judicial review will advance your goals of effectively fighting terrorism and promoting a more just and peaceful world. We are also confident that judicial review can proceed in a manner that protects the legitimate interests of the government in protecting sources and methods, diplomatic relationships and executive branch flexibility. Finally we believe that it is very likely that the courts will uphold the legality of your actions. One of the hallmarks of your administration has been its commitment to constitutional principles and the rule of law even in the face of deadly threats and the prosecution of a war against al Qaeda in Afghanistan and elsewhere. Judicial review is the linchpin for the rule of law. There can hardly be any instance where such review is more important than in a case where the government claims the right to target and kill an American, even if the grounds for that claim is that he has joined enemy forces overseas fighting against Americans. Ms. Martin said a court trial would allow the administration to show the world its reasoning about the legality of ordering the killing of alleged terrorists. We are concerned that seeking dismissal of the lawsuit on non-justiciability grounds will be seen as an effort to protect the administration's decisions from public scrutiny and judicial accountability. "As a technical legal matter," Ms. Martin wrote in an email to me, "the lawyers will say it's really hard to litigate the merits because they don't want to admit anything; but I'm pretty sure there's a way to do so if the President ordered them to." I don't agree with Ms. Martin on every aspect of this issue. We believe that the president needs some form of outside review, preferably by a court, when he orders an American killed as a suspected terrorist. She disagrees with that. But I agree completely with her argument that this case should proceed. I hope Mr. Obama cares enough about his legacy on issues of due process and the rule of law to heed her advice.