I have a lot to say about the ACLU-CCR brief in Al-Aulaqi, too much for a single post. In addition, this is a busy day for me for non-blogging reasons; my son and I are testing for our black belts in taekwondo today, so the only conflict I want to think about right now is non-armed conflict. No Predators are allowed in sparring, even in situations of imminent danger–only punches and kicks.
That said, here are some initial thoughts on the brief, on which I will elaborate in future posts:
First, the brief is a remarkable piece of work–elegantly-argued, well-crafted, and powerful. It is persuasive on some points, and challenging even where unpersuasive. My sincere congratulations go to its authors.
Second, it is remarkable how little press coverage the brief is receiving. So far, I have seen exactly none. I looked on Google News this morning, and my searches generated only the coverage of the government’s brief to which this one responds. This raises an interesting question: Why is the substance of what these groups are arguing of so little interest? When the government filed its brief, the substance of its actual argument barely registered in the press coverage, which focused entirely on its very reluctant invocation of the state secrets privilege. Now the plaintiffs have responded, and their arguments warrant essentially no attention at all. Why the assumption that the content of this litigation is not newsworthy, given that everyone seems to regard the litigation itself as highly newsworthy?
Third, the groups’ arguments on Al Aulaqi’s father’s next friend standing seem to me entirely unpersuasive. They hinge pervasively on the fact that Al Aulaqi, being on the run, cannot litigate these matters himself. His father can litigate the case for him, the groups contend, because he can’t surface without risking death. I find this argument maddening and I can’t believe the courts will buy it. It essentially asserts Al Aulaqi’s right to avail himself of the justice system without submitting to it. The government has made clear that it will accept his surrender, so the proper means of obtaining judicial review of his situation is for him to turn himself in and litigate his status–either through a habeas petition or through whatever criminal charges the prosecutors bring against him. There is no constitutional right not to be caught. At times, the brief appears to be asserting one. On page 14, for example, the groups argue that Al Aulaqi “cannot contact counsel, much less access the courts, without exposing himself to death or, at the very least, indefinite detention without charge.” Assuming for a moment that the government would treat Al Aulaqi as an enemy combatant if he surrendered (which I actually doubt), why exactly should Al Aulaqi not be expected to litigate his claims through a habeas process?
Fourth, the groups’ arguments on third party standing seem to me far stronger than I had imagined. The groups argue, in essence, that under case law, Al Aulaqi’s father has standing because the targeting of his son affects an injury to him (the killing of his child), because they have a close relationship, and because there is “some hindrance” to his son’s ability to protect his own legal interests. Critically, the groups argue that the case law interprets “some hindrance” more liberally than it does the inability to bring one’s own case for purposes of next friend standing. I have never studied this issue and frankly don’t know whether the groups’ argument here has legs or not. But on its face, it makes a far better case for standing in my view than does the next friend argument. (Paging Lawfare readers with expertise in standing: Please send me your thoughts on this point.)
Fifth, the groups’ arguments that the case does not present a political question are deeply radical and fascinating. For present purposes, consider only some of the main themes of the section. They begin by asserting that targeting decisions with respect to a U.S. national in Yemen are “no less justiciable that the question[s] of whether the executive branch could indefinitely detain an American citizen captured in Afghanistan” or “indefinitely detain non-citizens at Guantanamo Bay” or “charge and try suspects in ad-hoc military commissions.” In other words, the brief frontally and overtly attempts to do exactly what conservatives have warned would result from judicial intervention in detention matters: create a judicial supervisory role over at least some targeting matters. What’s more, the brief insists that the nature and scope of armed conflict overseas is itself a judicial matter. A subsection of the brief bears the heading, “The existence and scope of the armed conflict is not a political question” and argues that the court should evaluate government claims that an armed conflict exists based on the conflict’s intensity and the degree of organization of the parties. If the courts ever adopt this vision of their role in overseas conflict, it would constitute a revolution in military affairs.
I will, as I say, return to each of these issues later on.