Targeted Killing: Drones

Oral Argument Preview: Al-Aulaqi v. Panetta

By Raffaela Wakeman, Jane Chong
Thursday, July 18, 2013, 4:49 PM

Tomorrow morning, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia will hear arguments on the government's motion to dismiss in Al-Aulaqi v. Panetta. The lawsuit was filed last July by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) on behalf of the family members of three American citizens killed in U.S. drone strikes in Yemen: Anwar Al-Aulaqi, Abdulrahman Al-Aulaqi and Samir Khan. Anwar Al-Aulaqi, of course, was a prominent radical cleric and the government has described him as the chief of external operations of Al Qaeda in the Arabian Peninsula (AQAP); Khan, an alleged AQAP propagandist,  was killed in the same September 30, 2011 strike, while Al-Aulaqi’s 16-year old son Abdulrahman was killed in a separate strike two weeks later.

After Al-Aulaqi’s death was confirmed, details emerged of a memorandum authored by the Office of Legal Counsel laying out the constitutional arguments for targeting a senior operational leader of Al Qaeda who is a United States citizen in a drone strike. That memo has still not yet been released, although NBC News leaked a Department of Justice “White Paper” that summarized the arguments. Earlier this year, Attorney General Eric Holder officially acknowledged the three men’s deaths in a letter to members of Congress, prompting the court to order the government to address whether and to what extent the admission affected the litigation.

Anwar Al-Aulaqi’s father, Nasser Al-Aulaqi, unsuccessfully sued in federal court back in 2011 in an attempt to preemptively bar the U.S. government from targeting his son. District Court Judge John Bates  ruled that the petitioner lacked standing to sue, and also found the question to be a non-justiciable political question. (Read Bobby’s summary of Judge Bates’s ruling here.)

On July 18, 2012, the ACLU and CCR teamed up again, this time alleging that the Al-Aulaqis and Khan were wrongfully killed. The complaint named former Secretary of Defense Leon Panetta, Admiral William McRaven, Lieutenant General Joseph Votel, and former CIA Director David Petraeus in their individual capacities. The complaint reiterates the Fourth and Fifth Amendment claims presented in Al-Aulaqi v. Obama, but drops mention of the Alien Tort Statute in favor of a claim under the Bill of Attainder Clause.

In December, the government moved to dismiss the complaint, and in March the court ordered oral arguments on the motion. We can expect tomorrow’s arguments to revolve around four points raised in favor of dismissal:

  • Plaintiffs’ Claims Raise Non-Justiciable Political Questions.
  • Under Governing Precedent, Bivens Special Factors Preclude a Damages Remedy.
  • Defendants Are Entitled to Qualified Immunity.
  • Plaintiffs Have Failed To Demonstrate They Have the Capacity To Sue.

Political Question Doctrine

As expected, alleged non-justiciability lies at the core of the government’s motion to dismiss. Specifically, the government asserts that adjudicating the plaintiffs’ claims would require the court to pass judgment on military and counter-terrorism operations conducted pursuant to “the Executive's prerogative of national self-defense and in the course of an armed conflict authorized by Congress." As the language here suggests, the government carefully aligns the executive branch with Congress throughout its analysis. Focusing on the first three of the six “special factors” used by the Supreme Court in Baker v. Carr to determine whether issues are non-justiciable, the government asserts that the claims in this case have a “textually demonstrable constitutional commitment” to the political branches; lack judicially manageable standards; and require a policy determination that would show a "lack of the respect due" to the political branches.

The plaintiffs respond that the defendants' justiciability argument mischaracterizes the issues:

The question here is not whether Defendants "unlawfully applied the warmaking and national defense powers of the political branches to conduct alleged missile strikes abroad," [] but Plaintiffs’ question: whether Defendants’ use of lethal force against three American citizens violated their Fourth and Fifth Amendment rights.

. . .

The factors involved in evaluating Plaintiffs’ constitutional claims—for example, whether a threat is imminent, whether non-lethal alternatives are available, and whether lethal force is permissible in light of the threat to bystanders—are not "policy choices and value determinations," [] but well established legal criteria that courts routinely apply in evaluating the constitutionality of the use of lethal force under the Fourth and Fifth Amendments.

The government responds:

Plaintiffs attempt to avoid the clear application of the political question doctrine by describing their constitutional claims at the most general level. This fundamentally misconstrues the political question doctrine and ignores the specific nature of the political and operational judgments Plaintiffs seek to challenge, which render judicial review unmanageable in this extraordinary context.


The government points first to Supreme Court precedent and laws passed by Congress to support its argument against creating a new remedy for plaintiffs’ complaint. Specifically, the Supreme Court has refused to extend Bivens to new contexts, and Congress has forbidden judicial relief for injuries arising from military operations abroad, opting instead to fund Executive Branch activities that provide for discretionary relief.

Next, the government explains that D.C. Circuit precedent calls for hesitation when a claim implicates any of four special factors: national security, the effectiveness of the military, the risk of disclosing classified information, and foreign affairs. In this case, the government says, all four are present and thus even more hesitation is warranted. Writes the government in its motion to dismiss:

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 thiscase to the political branches.

The plaintiffs say that Congress hasn’t precluded a Bivens remedy in this context, that the government’s special factors are meant to apply to legislative, not executive action, and thus are not relevant to this case. Even if those special factors are present in this case, the plaintiffs maintain they still be entitled to prevent the defendants’ conduct to be shielded from any judicial review:

Defendants’ conduct—the premeditated killing of three U.S. citizens by executive fiat—is of an extraordinary nature. For this Court to conclude that Plaintiffs’ claims do not give rise to a Bivens action would lead to the chilling conclusion that federal officials can unlawfully take the lives of their fellow citizens without ever having to answer for their actions in court.

Qualified Immunity

The issue of qualified immunity hinges on whether the defendants violated the decedents’ clearly-established constitutional rights. The government argues that the decedents’ Fourth and Fifth Amendment rights were not clearly established, and that even assuming that they were, plaintiffs failed to state a violation. Plaintiffs argue that use of deadly force unambiguously violated the decedents’ Fourth and Fifth Amendments rights, and the Bill of Attainder Clause with respect to Anwar Al-Aulaqi, even assuming an armed conflict exists. Following AG Holder’s May 22, 2013 acknowledgment to Congress that the government had killed the Al-Aulaqis and Khan in drone strikes, the defendants informed the court that the disclosure had no bearing on the legal posture in the case. The plaintiffs disagreed, arguing that the AG's discussion of the constitutional standards that guided the government's targeting determination "flies in the face" of the defendants' claim that they could not have know whether and the extent to which constitutional protections applied to U.S. citizens in this extraordinary context.

Capacity to Sue

On a lesser note, the government also argues that the plaintiffs have not shown they have the capacity to sue---i.e., they failed to demonstrate they have complied with the filing requirements imposed on the foreign personal representatives of decedents not domiciled in D.C. The plaintiffs counter that the capacity to sue cannot be decided on a motion to dismiss.

Here's an inventory of relevant court materials:

Oral argument is scheduled for 10 AM; we’ll summarize the goings-on in court.