The Grounds on which the Government Wants to Win

By Benjamin Wittes
Sunday, September 26, 2010, 11:49 AM

In my previous post, I argued that the government's Al Aulaqi privilege claim, for all the attention it is getting, is not the grounds on which the government wants to get this case thrown out. The preferred grounds, to which the government's brief devotes most of its attention, are two-fold: Al Aulaqi's father lacks standing to bring the case on his son's behalf, and targeting matters involve a political question in which the judiciary has no proper role in any event. Importantly, the standing argument comes first. Both for that reason and because it has real merit, it warrants some attention.

I discussed both the standing and political question issues here in a post that anticipated the brief. In connection with the standing argument, the government has also embraced an argument I madeĀ here and here that Al Aulaqi has means available to him to assert his constitutional rights: Turning himself in. This argument induced some derision when I advanced it a few weeks ago. It appears, however, quite conspicuously in the government's brief (I am certain, just to be clear, not inspired by my blog posts). One of the reasons Al Aulaqi's father lacks standing, the government argues, is that his claim that his son "cannot access legal assistance without risking his life" is untrue. "Defendants state that if Anwar al-Aulaqi were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances. . . . Anwar al-Aulaqi would have the choice at that point, as he does now, to seek legal assistance and access to U.S. courts." In other words, Al-Aulaqi has legal remedies available to him and he is declining to use them, and given that fact, nobody else should be able to assert his rights on his behalf.

This argument seems to me profoundly correct. To find that Al Aulaqi's father has standing here, a court would have to find that he can bring a lawsuit asserting someone else's constitutional rights when that someone else has an available means of asserting them himself and chooses not to do so. That Al Aulaqi himself does not bring his own case may reflect a lack of interest in availing himself of the legal system or the desire not to be caught. Both of these are understandable impulses for a man on the run who does not believe in American justice, but neither should remotely convey standing to any third party. Indeed, the lack of a desire by a mentally-capable adult to assert legal entitlements should preclude their assertions by anyone else on his behalf. And just to be clear, there is most emphatically no constitutional right to not be caught. That is true in the criminal justice system and it is no less true in this context.

I'll go a step further here, at the risk of antagonizing the ACLU and CCR: To my mind, the argument that one should be entitled to assert one's claims as a citizen while on the lam and while making war against one's own country is offensive to the very notion of citizenship. Citizenship is a two-way street. It involves obligations on the government's part towards the individual, and it involves obligations on the individual's part towards society. One does not get to make war on that society, to refuse to engage the processes by which one gets to assert one's rights, and then make up an entirely new legal procedure to assert those same rights. To his credit, Al Aulaqi appears to understand this. The result is that that his lawyers have no client and have to use his father as a proxy. That is lamentable for them, but it should have not one iota of claim on the justice system.

I am very curious to see what arguments the ACLU and CCR make in response to the government's submission on standing. Specifically, I would like to see whether and how they can avoid arguing, at least implicitly, that it is possible simultaneously to make war on the United States, to invoke the rights and protections of citizenship of the United States, to do so without showing up to avail oneself of the procedures that the legal system offers for the vindication of those rights, and (here's the real trick) to do so without even having to do so because one's father, the ACLU, and CCR can do it all for you. In response to my prior posts on this subject, some commentators treated the standing question in this case as a legalism to be worked around. I think it is far more consequential than that--that it is both legally and morally important. There's a reason it is the government's principal argument.