Notes from the Al Aulaqi Argument

By Benjamin Wittes
Monday, November 8, 2010, 11:39 PM

The Al Aulaqi argument today was long—far too long for me to write a blow-by-blow account of the entire session. It went on for three hours, and I had to duck out just before it ended. Even a brief summary would be, well, lengthy. As the arguments on both sides tracked those in the briefs relatively closely, moreover, it would also not add a great deal to my earlier discussions of those documents. Rather than focus on the arguments of the parties, therefore, I am going to give my impressions of Judge John Bates' reactions to these arguments.

Judge Bates was deeply engaged with counsel for both sides throughout the argument. At the hearing's end (shortly after I had left), he made clear that his ruling is not imminent. He did not tip his hand decisively as to which way he will rule. That said, I think we can venture a few inferences and conclusions based on his comments and questions. Those inferences and conclusions are generally quite favorable to the government.

Judge Bates largely restricted today's argument to threshold questions and kept it away from the case's merits. He began the hearing by saying that if he denied the government's motion to dismiss, he would quickly schedule a hearing on the merits, so the parties should feel no pressure to address the merits now. As a result, the hearing did not focus much on the ACLU's and CCR's motion for an injunction but focused almost entirely on four questions raised by the government's motion to dismiss: Whether Anwar Al Aulaqi's father has standing to bring the case--either next friend standing or third party standing; whether the political question doctrine bars consideration of the case; whether the plaintiff has a cause of action under the Alien Tort Statute; and whether the state secrets doctrine requires the case's dismissal.

Let's start with two issues on which the ACLU and CCR did not fare well at all. For starters, the plaintiff's arguments on the Alien Tort Statute are going nowhere. I don't know this area of law very well (I leave this subject to Jack), but Judge Bates seemed to feel pretty strongly both that Anwar Al Aulaqi—as a U.S. citizen—could not file under the ATS, and that his father lacked a cause of action for the mere threat of an extra-judicial killing of his son, rather than for the fact of one. The more counsel for CCR, Pardiss Kebriaei, argued the point, the more convinced he seemed to become that she was effectively asking for a waiver of some pretty basic restraints on his authority. He even suggested at one point that the groups' argument is a moving target that amounts to an assertion that the extraordinary circumstances of the case requires that they have a cause of action. I would be very surprised indeed if the groups prevail on this point.

Almost as clear is that they gained little traction on their claims of next friend standing. Judge Bates's questions made fairly clear that he views skeptically the notion that Anwar Al Aulaqi is unable to assert his own claims. What's more, he questioned whether Al Aulaqi's father really has the same interests as his son, who, he pointed out, had spoken out against the U.S. justice system and had never intimated any interest in availing himself of its protection. He strongly suggested that he believed the groups had the burden of showing that they were acting in Anwar Al Aulaqi's best interests. And during the government's argument, when attorney Douglas Letter raised the next friend standing issue, Judge Bates advised him to move quickly on to the third-party standing issue—suggesting that he views that one as presenting the more difficult question. (If that is his view, I very much agree with it.) As best I could discern, Judge Bates seemed to know what he thinks of this issue, and he seemed unimpressed by the notion that Al Aulaqi's father could file on his son's behalf as a next friend.

He seemed much more impressed by the notion that Al Aulaqi's father might have third party standing. On this point, I emerged genuinely uncertain where Judge Bates is headed. He said that he thinks the case law on third party standing is “a mess,” so he may be unsure himself at this stage. In any event, he pushed both sides on the subject hard. On the one hand, he appeared to agree with the ACLU's Jameel Jaffer that the standards here are more forgiving than the case law's insistence with respect to next friend standing that the party at interest be “unable” to sue. With third party standing, by contrast, the third party need only show a “hindrance” to the party at interest's ability to assert his own rights—and Judge Bates noted that the courts have not always been rigorous in insisting even on that. On the other hand, he suggested that Al Aulaqi's father may have trouble establishing that he has suffered any injury in fact. And he was clearly troubled by the absence of third party standing cases in which the party at interest is, like Anwar Al Aulaqi, an independent and competent adult.

He also pushed both sides hard on the political question doctrine. To Letter, he posed the awkward (to the government) question of how judicial review could be required for electronic surveillance of a citizen overseas, permitted for the taking of property of a citizen overseas, yet forbidden for the killing of a citizen overseas. He also pushed Letter on why the Supreme Court has decided so few cases on the basis of the political question doctrine—suggesting that it might not be all that robust. And he suggested that the standards applicable here would be no less judicially manageable than those in the post-Boumediene habeas cases, where courts are assessing wartime detention judgments, and in FISA cases, where judges are assessing intelligence judgments that a person is an Al Qaeda agent. On the other side, however, he directed pointed questions to CCR's Kebriaei concerning D.C. Circuit precedents that seem close to the present case. If the targeting of a pharmaceutical plant in Sudan is a political question, why is not the targeting of a person in Yemen? If it is a political question whether a given group poses a threat to U.S. interests, why is it not a political question whether an individual poses an imminent threat? He also asked Kebriaei what the best case was that she could cite for the proposition that a court should get involved ex ante in military and intelligence matters and then write standards for those actions and enforce them through contempt citations. She cited Youngstown, the remoteness of which was striking.

Finally, Judge Bates seemed generally sympathetic to the government's state secrets argument, though troubled by aspects of it. When Letter first articulated the government's preference that this case be decided on other grounds, Judge Bates said he understood that was the government's view and thought it a sound position for the government to take. While he pushed Letter on several key points, he did not seem hostile to the notion that it may simply not be possible to litigate this case without disclosing important secrets. Indeed, when Jaffer suggested that the government had been quite free in the press with matters it considers too secret to discuss in court, Judge Bates pointed out that this does not distinguish Al Aulaqi's case from the 9th Circuit's Jeppesen case, which dealt with renditions. Indeed, he suggested, when you look at the kinds of cases in which courts have accepted state secrets arguments, this one seems rather in line with them. Why is rendition a more appropriate subject for the privilege, he asked, than military targeting?

All in all, I see many more paths to victory for the government here than I do for the ACLU and CCR. If we assume that the groups have little chance of winning on next friend standing but some significant chance of winning on third-party standing, they would still have to clear both a serious political question hurdle, and a just-as-serious state secret hurdle just in order to survive the motion to dismiss. Having heard Judge Bates' questions, it seems to me very unlikely they will prevail on all three points. I'm not at all sure over which wire Judge Bates will eventually trip, but my best read from the argument is that it seems preponderantly likely that he will trip over at least one of them.