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Some Thoughts on Judge Bates’ Decision

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Wednesday, December 8, 2010 at 7:33 AM

Five thoughts on Judge Bates’ Al Aulaqi decision:

First, as far as I’m concerned, there is really only one surprising thing about the decision, whose holdings any Lawfare reader could have anticipated relatively precisely. The surprise is that Judge Bates reached so many of the justiciability questions the government raised about the suit. He could, after all, have stopped after concluding that Anwar Al Aulaqi’s father lacked standing to bring the case and that he had failed to state a claim under the Alien Tort Statute. But he went on. He went on to rule that the case presented a non-justiciable political question as well. Indeed, virtually the only point on which he declined to rule in the government’s favor was the one which it had specifically asked him not to reach if he could avoid doing so: Whether the case should also be dismissed because of the military and state secrets privilege. This opinion, in a quiet firm way, was designed to make a statement: that whatever the merits of the ACLU and CCR’s claim, there’s simply no way into the subject for a court.

Second, the decision is, I think, bullet-proof on appeal to the D.C. Circuit. I can imagine no panel of that court that will reverse this opinion. If the ACLU and CCR have a prayer, and I frankly doubt that they do, it is at the Supreme Court. This is not because the D.C. Circuit is conservative, thought it is. It is because there is simply too much case law cutting against the groups for any responsible appeals court to reverse Judge Bates. The D.C. Circuit judges are going to respect that case law, and they’re thus going to get hung up on some justiciability question or other–or maybe, as he did, a bunch of them. The strongest argument the ACLU and CCR have is a gestalt argument that it’s absurd and terrifying to contemplate what Judge Bates candidly called “the somewhat unsettling nature of [his] 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.” Yet only the Supreme Court can ultimately entertain this argument seriously, and then only by sweeping away or ignoring the case law that binds lower courts. There is, in my judgment, zero chance of the D.C. Circuit’s attempting this project. Even if it were to disagree with Judge Bates on the ATS, it won’t disagree on the political question, and even if it were to do that, it won’t disagree on standing. There are too many barriers; they may be individually insurmountable; they are certainly cumulatively insurmountable.

Third, for this reason, one has to wonder at least a little bit about why the ACLU and CCR are pursuing this case. The groups did a truly remarkable job with their brief, and Jameel Jaffer did an equally wonderful job arguing the case before Judge Bates. And despite that, he lost on every point of consequence. The principle bases on which the groups would lose were obvious even before the briefs came in. So what then is the point of this suit? Is it a Hail Mary pass at the Supreme Court? An effort to make a principled statement by losing? An effort to influence the public debate? Or is it just a tilt at windmills? I’m genuinely not sure. One thing I’m certain of, however, is that the folks at the ACLU and CCR are too sophisticated to think they’re litigating to win here.

Fourth, I remain convinced that the government would do itself an enormous service if it could say more than it has about the circumstances in which it will and will not target individuals abroad–U.S. citizens, in particular–and about what it regards as the legal limits on its authority to do so. The Obama administration has made significant progress on this front, but given the strategic importance it has placed on the drone program, it needs to say more. In the long run, I don’t believe this litigation is going to set the rules of targeting. I’ve been wrong on matters like this before (I thought there was no chance of the Supreme Court’s granting cert in Rasul, for example), but I don’t think this case is headed for a glorious showdown at the Supreme Court. I think it’s headed for a blunt affirmance at the D.C. Circuit and then a cert denial. If I’m right about that, the dialog the executive branch has with itself on this subject, with Congress, and with the public at large is ultimately going to prove far more consequential than its dialog with the courts. Candor has intrinsic value here, and it can create legitimacy.

Finally, I find myself in the rare position of disagreeing almost completely with Jack. Jack sees small victories for the ACLU and CCR within the general rout. I see none, or rather, only victories that, if they exist at all, are small to the vanishing point. Two of the three wins Jack mentions, he acknowledges, involve language “invited by the government” in its briefing. One involves a statement that is “probably a dictum,” another a statement that is “a bit tentative,” and the third finds victory only in Judge Bates’ ruling narrowly on the political question doctrine–a holding that would have been narrower still had the plaintiffs never brought the case in the first place. It is generous of Jack to find the silver lining for the groups here, but I think they will take cold comfort from these “wins.” And I notice that neither the ACLU’s nor CCR’s statements dwell on them.

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