Opinion here. More to come after we’ve had a chance to digest the full opinion.
UPDATE: Below are selected excerpts from the opinion (footnotes omitted).
Excerpt from introduction:
This is a unique and extraordinary case. Both the threshold and merits issues present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure. Leading Supreme Court decisions from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), through Justice Jackson’s celebrated concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), to the more recent cases dealing with Guantanamo detainees have been invoked to guide this Court’s deliberations. Vital considerations of national security and of military and foreign affairs (and hence potentially of state secrets) are at play.
Stark, and perplexing, questions readily come to mind, including the following: How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen — himself or through another — use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for “jihad against the West,” and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the “target” of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?
These and other legal and policy questions posed by this case are controversial and of great public interest. “Unfortunately, however, no matter how interesting and no matter how important this case may be . . . we cannot address it unless we have jurisdiction.” United States v. White, 743 F.2d 488, 492 (7th Cir. 1984). Before reaching the merits of plaintiff’s claims, then, this Court must decide whether plaintiff is the proper person to bring the constitutional and statutory challenges he asserts, and whether plaintiff’s challenges, as framed, state claims within the ambit of the Judiciary to resolve. These jurisdictional issues pose “distinct and separate limitation[s], so that either the absence of standing or the presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) (internal citations omitted).
Although these threshold questions of jurisdiction may seem less significant than the questions posed by the merits of plaintiff’s claims, “[m]uch more than legal niceties are at stake here” — the “constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). Here, the jurisdictional hurdles that plaintiff must surmount are both complex and at the heart of the intriguing nature of this case. But “[a] court without jurisdiction is a court without power, no matter how appealing the case for exceptions may be,” Bailey v. Sharp, 782 F.2d 1366, 1373 (7th Cir. 1986) (Easterbrook, J., concurring), and hence it is these threshold obstacles to reaching the merits of plaintiff’s constitutional and statutory challenges that must be the initial focus of this Court’s attention. Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.
Standing/Next Friend Standing:
1. Anwar Al-Aulaqi’s Access to the Courts
Plaintiff has failed to provide an adequate explanation for his son’s inability to appear on his own behalf, which is fatal to plaintiff’s attempt to establish “next friend” standing. In his complaint, plaintiff maintains that his son cannot bring suit on his own behalf because he is “in hiding under threat of death” and any attempt to access counsel or the courts would “expos[e] him to possible attack by Defendants.” Compl. ¶ 9; see also id. ¶ 26; Al-Aulaqi Decl. ¶ 10. But while Anwar Al-Aulaqi may have chosen to “hide” from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. Defendants have made clear — and indeed, both international and domestic law would require — that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be “prohibit[ed] [from] using lethal force or other violence against him in such circumstances.” See Defs.’ Mem. at 2; see also id. at 5, 13-14; Mot. Hr’g Tr. 15:6-8 (government counsel states that “if [Anwar Al-Aulaqi] does present himself, he is under no danger of the United States government using lethal force” against him); Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (explaining that “[i]n the case of armed conflict not of an international character,” a party to the conflict is prohibited from using “violence to life and person” with respect to individuals “who have laid down their arms”); Hamdan v. Rumsfeld, 548 U.S. 557, 629-32 (2006) (holding that Geneva Convention Common Article 3 applies to the current U.S. conflict with al Qaeda); Tennessee v. Garner, 471 U.S. 1, 11 (1985) (explaining in the domestic law enforcement context that “[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead”).
Plaintiff argues that to accept defendants’ position — that Anwar Al-Aulaqi can access the U.S. judicial system so long as he “surrenders” — “would require the Court to accept at the standing stage what is disputed on the merits,” since the Court would then be acknowledging that Anwar Al-Aulaqi is, in fact, currently “a participant in an armed conflict against the United States.” See Pl.’s Opp. at 9. Not so. The Court’s conclusion that Anwar Al-Aulaqi can access the U.S. judicial system by presenting himself in a peaceful manner implies no judgment as to Anwar Al-Aulaqi’s status as a potential terrorist. All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. Anwar Al-Aulaqi is thus faced with the same choice presented to all U.S. citizens.
It is certainly possible that Anwar Al-Aulaqi could be arrested — and imprisoned — if he were to come out of hiding to seek judicial relief in U.S. courts. Without expressing an opinion as to the likelihood of Anwar Al-Aulaqi’s future arrest or imprisonment, it is significant to note that an individual’s incarceration does not render him unable to access the courts within the meaning of Whitmore. See Avent v. Dist. of Columbia, 2009 WL 387668, at *1 (D.D.C. Feb. 13, 2009) (finding that parent lacked “next friend” standing to pursue claim on behalf of her incarcerated and mentally capable adult child); see also Arocho v. Camp Hill Corr. Facilities, 417 F. Supp. 2d 661, 662 (M.D. Pa. 2005) (denying father “next friend” standing to sue on behalf of his incarcerated adult son, who “had access to prison legal sources” and was fully capable of prosecuting the case on his own behalf). Indeed, “prisoners can, and do, bring civil suits all the time.” Avent, 2009 WL 387668, at *1. Given that an individual’s actual incarceration is insufficient to show that he lacks access to the courts, the mere prospect of Anwar Al-Aulaqi’s future incarceration fails to satisfy Whitmore’s “inaccessibility” requirement.
Standing/Third Party Standing:
Ultimately, plaintiff’s belated argument in support of third party standing fares no better than his attempt to sue as his son’s “next friend.” Plaintiff cannot show that a parent suffers an injury in fact if his adult child is threatened with a future extrajudicial killing. Moreover, even if plaintiff could make such a showing, the prudential Powers factors militate against according plaintiff third party standing to assert violations of his son’s constitutional rights. As the Supreme Court has observed, where “the interests of [a] parent and [a] child are not in parallel, and indeed, are potentially in conflict,” a parent may not evade the requirements of “next friend” standing by instead bringing suit under the related doctrine of third party standing. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004).
Alien Tort Statute:
Plaintiff brings his fourth and final claim under the Alien Tort Statute (“ATS”), alleging that the United States’s “policy of targeted killings violates treaty and customary international law.” See Compl. ¶ 29. The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. Plaintiff is an alien, see Al-Aulaqi Decl. ¶ 2, but in order for his ATS claim to survive a motion to dismiss, he must also show that (1) an alien suffers a legally cognizable tort — which rises to the level of a “customary international law norm” — when his U.S. citizen son is threatened with a future extrajudicial killing and (2) the United States has waived sovereign immunity for that type of claim. Because plaintiff has failed to make either showing, his ATS claim must be dismissed.
Political Question Doctrine:
Judicial resolution of the “particular questions” posed by plaintiff in this case would require this Court to decide: (1) the precise nature and extent of Anwar Al-Aulaqi’s affiliation with AQAP; (2) whether AQAP and al Qaeda are so closely linked that the defendants’ targeted killing of Anwar Al-Aulaqi in Yemen would come within the United States’s current armed conflict with al Qaeda; (3) whether (assuming plaintiff’s proffered legal standard applies) Anwar Al-Aulaqi’s alleged terrorist activity renders him a “concrete, specific, and imminent threat to life or physical safety,” see Compl., Prayer for Relief (c); and (4) whether there are “means short of lethal force” that the United States could “reasonably” employ to address any threat that Anwar Al-Aulaqi poses to U.S. national security interests, see id. Such determinations, in turn, would require this Court, in defendants’ view, to understand and assess “the capabilities of the [alleged] terrorist operative to carry out a threatened attack, what response would be sufficient to address that threat, possible diplomatic considerations that may bear on such responses, the vulnerability of potential targets that the [alleged] terrorist may strike, the availability of military and nonmilitary options, and the risks to military and nonmilitary personnel in attempting application of non-lethal force.” Defs.’ Mem. at 26; see also Mot. Hr’g Tr. 38:6-14. Viewed through these prisms, it becomes clear that plaintiff’s claims pose precisely the types of complex policy questions that the D.C. Circuit has historically held non-justiciable under the political question doctrine.
Most recently, in El-Shifa v. United States the D.C. Circuit examined whether the political question doctrine barred judicial resolution of claims by owners of a Sudanese pharmaceutical plant who brought suit seeking to recover damages after their plant was destroyed by an American cruise missile. President Clinton had ordered the missile strike in light of intelligence indicating that the plant was “‘associated with the [Osama] bin Ladin network’ and ‘involved in the production of materials for chemical weapons.'” El-Shifa, 607 F.3d at 838 (internal citation omitted). The plaintiffs maintained that the U.S. government had been negligent in determining that the plant was tied “to chemical weapons and Osama bin Laden,” and therefore sought “a declaration that the government’s failure to compensate them for the destruction of the plant violated customary international law, a declaration that statements government officials made about them were defamatory, and an injunction requiring the government to retract those statements.” Id. at 840. Dismissing the plaintiffs’ claims as nonjusticiable under the political question doctrine, the D.C. Circuit explained that “[i]n military matters . . . the courts lack the competence to assess the strategic decision to employ force or to create standards to determine whether the use of force was justified or well-founded.” Id. at 844. Rather than endeavor to resolve questions beyond the Judiciary’s institutional competence, the court held that “[i]f the political question doctrine means anything in the arena of national security and foreign relations, it means the courts cannot assess the merits of the President’s decision to launch an attack on a foreign target.” Id.
Here, plaintiff asks this Court to do exactly what the D.C. Circuit forbid in El-Shifa — assess the merits of the President’s (alleged) decision to launch an attack on a foreign target. Although the “foreign target” happens to be a U.S. citizen, the same reasons that counseled against judicial resolution of the plaintiffs’ claims in El-Shifa apply with equal force here. Just as in El-Shifa, any judicial determination as to the propriety of a military attack on Anwar Al-Aulaqi would “‘require this court to elucidate the . . . standards that are to guide a President when he evaluates the veracity of military intelligence.'” Id. at 846 (quoting El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1365 (Fed. Cir. 2004)). Indeed, that is just what plaintiff has asked this Court to do. See Compl., Prayer for Relief (d) (requesting that the Court order the defendants to “disclose the criteria used in determining whether the government will carry out the targeted killing of a U.S. citizen”). But there are no judicially manageable standards by which courts can endeavor to assess the President’s interpretation of military intelligence and his resulting decision — based on that intelligence — whether to use military force against a terrorist target overseas. See El-Shifa, 378 F.3d at 1367 n. 6 (expressing the view that “it would be difficult, if not extraordinary, for the federal courts to discover and announce the threshold standard by which the United States government evaluates intelligence in making a decision to commit military force in an effort to thwart an imminent terrorist attack on Americans”). Nor are there judicially manageable standards by which courts may determine the nature and magnitude of the national security threat posed by a particular individual. In fact, the D.C. Circuit has expressly held that the question whether an organization’s alleged “terrorist activity” threatens “the national security of the United States” is “nonjusticiable.” People’s Mohahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 23 (D.C. Cir. 1999). Given that courts may not undertake to assess whether a particular organization’s alleged terrorist activities threaten national security, it would seem axiomatic that courts must also decline to assess whether a particular individual’s alleged terrorist activities threaten national security. But absent such a judicial determination as to the nature and extent of the alleged national security threat that Anwar Al-Aulaqi poses to the United States, this Court cannot possibly determine whether the government’s alleged use of lethal force against Anwar Al-Aulaqi would be “justified or well-founded.” See El-Shifa, 607 F.3d at 844. Thus, the second Baker factor — a “lack of judicially discoverable and manageable standards” for resolving the dispute — strongly counsels against judicial review of plaintiff’s claims.
* * *
To be sure, this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. Indeed, in one of the only two cases since Baker v. Carr in which the Supreme Court has dismissed a case on political question grounds, the plaintiffs were U.S. citizens alleging violations of their constitutional rights. See Gilligan v. Morgan, 413 U.S. 1, 3 (1973).
* * *
Contrary to plaintiff’s assertion, in holding that the political question doctrine bars plaintiff’s claims, this Court does not hold that the Executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” See Mot. Hr’g Tr. 118:1-2. Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of AQAP, see Clapper Decl. ¶ 15, presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a “drastic measure” for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a “terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009,” id. ¶ 13. But as the D.C. Circuit explained in Schneider, a determination as to whether “drastic measures should be taken in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking.” 412 F.3d at 197. Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial resolution of this case.
State Secrets Privilege:
[D]efendants also correctly and forcefully observe that this Court need not, and should not, reach their claim of state secrets privilege because the case can be resolved on the other grounds they have presented. It is certainly true that the state secrets privilege should be “invoked no more often or extensively than necessary.” Jeppesen Dataplan, 614 F.3d at 1080. Indeed, last year the Attorney General promulgated a policy confirming that the state secrets privilege will only be invoked in limited circumstances involving a significant risk of harm to national security and after detailed procedures are followed (including personal approval of the Attorney General). See Defs.’ Mem., Ex. 2. And here, defendants have confirmed that the privilege has been invoked only after that careful review and adherence to the mandated procedures under the Attorney General’s policy. See Defs.’ Mem. at 44.
Under the circumstances, and particularly given both the extraordinary nature of this case and the other clear grounds for resolving it, the Court will not reach defendants’ state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue. But in any event, because plaintiff lacks standing and his claims are non-justiciable, and because the state secrets privilege should not be invoked “more often or extensively than necessary,” see Jeppesen Dataplan, 614 F.3d at 1080, this Court will not reach defendants’ invocation of the state secrets privilege.