Divisions within the Administration Concerning Al Aulaqi Response?

By Benjamin Wittes
Thursday, September 16, 2010, 4:07 AM

Don't miss this very interesting story from Charlie Savage on the argument going on within the administration concerning how to respond to the Al Aulaqi lawsuit. The story, which quotes both of my co-bloggers, suggests several possible lines of response to the ACLU-CCR suit on Al Aulaqi's targeting. Administration lawyers are united, Savage reports, on the legality of the administration's conduct, were it evaluated on its legal merits. But they understandably don't want to litigate the matter on the merits, so several options are in play to avoid adjudication. These options, according to Savage are (1) arguing that Al Aulaqi's father, who brought the suit, has no standing to do so, (2) invoking the state secrets doctrine, and (3) arguing that targeting decisions are "political question" not appropriate for judicial resolution.

The standing argument, which Savage describes as "virtually certain" to feature in the response, seems to me a no-brainer. Al Aulaqi is, after all, a live, sentient being capable of litigating on his own behalf. The dispute here is really between him and the government, not between the government and his father (though I would certainly hope that my father would have something to say if the government were trying to kill me). It's at least a reasonable question why the courts should entertain a suit Al Aulaqi cannot be troubled to bring himself. The apparent answer, that the ACLU and CCR really want to file a lawsuit, can't get in touch with him, but have managed to get in touch with his dad should have little claim on the attention of the federal judiciary, in my opinion. Wherever Al Aulaqi is, he surely knows the U.S. government is out to get him--and I'm sure he knows as well how to get in touch with the ACLU. The fact that he hasn't done so properly should induce caution in judges about assessing his case.

Similarly, I would have no reservation about invoking the political question doctrine here. It's been a while since I studied Baker v. Carr, but you don't have to know the case well for the very subject of enemy targeting to bring to mind Justice Brennan's famous paragraph describing the contours of the political question doctrine:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Well, let's see. A "textually demonstrable constitutional commitment of the issue to a coordinate political department"? Check. You don't have to be David Addington to think that the Commander in Chief Clause represents a textual commitment to the president of the power to decide whom to target with lethal force. A "lack of judicially discoverable and manageable standards for resolving" the case? Check. What exactly is the legal principle by which a judge can decide which Al Qaeda members are targetable and which are not? Citizenship? Citizenship off the battlefield? And how is a judge to manage whatever standards he might discover when the target (or his father) might not even know he has been targeted and thus might not be able to file suit?  The "impossibility of deciding [the case] without an initial policy determination of a kind clearly for nonjudicial discretion"? Big check. The "impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government"? Another big check. The "potentiality of embarrassment from multifarious pronouncements by various departments on one question"? Huge check. Indeed, the suit is asking for an exactly that: An injunction against Al Aulaqi's targeting by the executive branch. This suit pretty much covers all of Justice Brennan's bases.

I would defer to Bobby on the question of whether invoking the state secrets privilege would be wise here. My gut instinct is that, optics aside, it will be hard to avoid invocation of the privilege in case whose entire subject matter is a covert action.