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The Aulaqi-Khan Suit: Some Initial Thoughts

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Wednesday, July 18, 2012 at 2:29 PM

I have now read through the ACLU-CCR lawsuit on behalf of the Al-Aulaqi and Khan families. Here are my initial thoughts:

First, this lawsuit does not suffer from the prohibitive standing problem that plagued these groups’ earlier efforts to block prospectively the targeting of Anwar Al-Aulaqi. That case suffered from the basic jurisdictional problem that its plaintiff was not Anwar Al-Aulaqi. Al-Aulaqi’s father had an insurmountably tough climb in arguing that he should be able to walk into court and assert the constitutional rights of a sentient, competent adult who evidently had no interest in asserting his own rights. The Predator drones that killed Al-Aulaqi, his 16-year-old son Abdulrahman, and AQAP propagandist Samir Khan also blew away that particularly barrier to judicial review. After all, there is no question that immediate family members who allege that their kin were wrongfully killed have standing to bring suit.

Second, an invocation of the state secrets privilege in this case seems preponderantly likely, but it will be a weaker claim than the one the government made in the earlier round of litigation. U.S. District Judge John Bates declined to rule on that claim, at the government’s request, since he granted the motion to dismiss on jurisdictional grounds—including standing. But the vitality of the state secrets argument has eroded, in my view, since then. The government has publicly acknowledge the drone program, for one thing. President Obama personally and publicly took credit for the killing of Al-Aulaqi—and Defense Secretary Leon Panetta said that “we were successful in . . . taking down al-Aulaqi.” That’s even before you get to the astonishing flood of leaks about the targeting decisions, particularly in Dan Klaidman’s book, Kill or Capture. While other facts pertinent to the drone program certainly remain under wraps, the government will, and in my judgment should, have a harder now arguing that it can boast of killing Al-Aulaqi but that his family can’t litigate concerning whether the boasted-of conduct violated the law.

Third, all that said, I suspect that the ACLU and CCR have merely traded one set of prohibitive jurisdictional hurdles for another. The word “Bivens” does not appear in the complaint, but neither is any other cause of action mentioned, and I’m unaware of any other cause of action that might be available. Assuming this is a Bivens action, I don’t see how the Bivens special factor analysis in the Fourth Circuit’s decision in Lebron—unless repudiated by the Supreme Court—represents anything other than a brick wall into which this case is a speeding truck. As Judge Wilkinson wrote in that case for a unanimous panel:

Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the thought that those involved would face prolonged civil litigation and potential personal liability.

The D.C. Circuit later took a similar view in Doe v. Rumsfeld. I will be very interested to see how the ACLU and CCR try to posture this case so as to get around a very unfriendly Bivens environment.

Fourth, assuming for a moment (I suspect counterfactually) that they manage this trick, the suit seems to me to raise one very interesting question. It is not, in my opinion, whether the Anwar Al-Aulaqi kill was lawful. It is whether and under what circumstances one can assert a due process right not to be collateral damage. The complaint alleges about Abdulrahman Al-Aulaqi (with similar language about Khan) that his killing was unlawful because he was:

not engaged in any activity that presented a concrete, specific, and imminent threat of death or serious physical injury; nor was he directly participating in hostilities. If he was killed because the government was targeting another individual, his killing was unlawful because, upon information and belief, Defendants authorized and directed the strike without taking legally required measures to avoid harm to him. Even in the context of an armed conflict, the government must comply with the requirements of distinction and proportionality and take all feasible measures to protect bystanders. Upon information and belief, Abdulrahman Al-Aulaqi was killed because Defendants failed to take such measures.

If this case ever reaches the merits, this issue will, I suspect, lie at its heart. It will confront the courts with the question of whether the Constitution protects U.S. citizens from being inadvertently killed in warfare. The answer, I suspect, will be no.

UPDATE: I’m told that the ACLU lawyers said on this morning’s media call that the suit is, in fact, a Bivens suit.

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