Targeted Killing: Litigation

Motion to Dismiss Filed in Al-Aulaqi v. Panetta et al.

By Wells Bennett
Friday, December 14, 2012, 4:16 PM

Today, lawyers for Secretary of Defense Leon Panetta, and other federal officials sued in their individual capacities, filed a motion to dismiss in the case of Al-Aulaqi v. Panetta et al.  The defendants have asked the district court to throw out the suit brought by Nasser Al-Aulaqi and Sarah Khan.  As is well known, plaintiffs seek money damages in connection with the deaths of Anwar Al-Aulaqi, Abdulrahman Al-Aulaqi, and Samir Khan---all of which resulted from drone strikes conducted by the United States.

The United States at the same time filed a "statement of interest," in which the government notes its invocation of the state secrets privilege in prior litigation involving Al-Aulaqi's targeting, and reserves the right to invoke the privilege again, in this action, if the defendants' motion is denied.

From the motion to dismiss:

Plaintiffs Nasser Al-Aulaqi and Sarah Khan, purportedly as representatives of the estates of three U.S. citizens killed in Yemen, ask this Court to impose personal liability on Defendants, including the Secretary of Defense and the former Director of the Central Intelligence Agency, based on the Executive Branch’s alleged conduct of military and counterterrorism operations against an elusive and hostile enemy abroad in the course of an ongoing, congressionally authorized armed conflict with al-Qa’ida and associated forces. Particularly, Plaintiffs seek damages from individual government officials for allegedly authorizing and directing missile strikes that they contend resulted in these citizens’ deaths abroad.

But courts repeatedly have recognized that the political branches, with few exceptions, have both the responsibility for—and the oversight of—the defense of the Nation and the conduct of armed conflict abroad. The Judiciary rarely interferes in such arenas. In this case, Plaintiffs ask this Court to take the extraordinary step of substituting its own judgment for that of the Executive. They further ask this Court to create a novel damages remedy, despite the fact that—based on Plaintiffs’ own complaint—their claims are rife with separation-of-powers, national defense, military, intelligence, and diplomatic concerns. Judicial restraint is particularly appropriate here, where Plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the U.S. defense and intelligence communities. Under these weighty circumstances, this Court should follow the well-trodden path the Judiciary—and particularly the D.C. Circuit—have taken in the past and should leave the issues raised by this case to the political branches.