Outline of the Al-Aulaqi Opinion for Those in a Rush...

By Robert Chesney
Tuesday, December 7, 2010, 12:18 PM

Don't have time to read the 83-page opinion in Al-Aulaqi?  Here are the key points in outline format, sans commentary:

I. Does Al-Aulaqi’s father have standing to assert his interests?

A. Next Friend Standing: First, the court considers whether the father has standing as Al-Aulaqi’s “next friend.”  The court identifies two prerequisites: the putative next friend must demonstrate that (i) the real party in interest cannot assert his rights directly and (ii) the putative next friend will be “truly dedicated” to the real party’s interests.  The court finds that the father failed to satisfy either of these requirements.

1. Inability to assert rights directly:

Judge Bates writes that

while Anwar Al-Aulaqi may have chosen to "hide" from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. . . . The Court's conclusion that Anwar Al-Aulaqi can access the U.S. judicial system by presenting himself in a peaceful manner implies no judgment as to Anwar Al-Aulaqi's status as a potential terrorist. All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. (17-19)

Judge Bates added:

To the extent that Anwar Al-Aulaqi is currently incommunicado, that is the result of his own choice. Moreover, there is reason to doubt whether Anwar Al-Aulaqi is, in fact, incommunicado. Since his alleged period of hiding began in January 2010, see Al-Aulaqi Decl. ¶ 8, Anwar Al-Aulaqi has communicated with the outside world on numerous occasions, participating in AQAP video interviews and publishing online articles in the AQAP magazine Inspire. (20-21)

2. Father’s dedication to Al-Aulaqi’s “best interests”:

Judge Bates also concludes that the father failed to prove sufficient commitment to Al-Aulaqi’s best interests, on the ground that a putative next friend must show “that he is acting in accordance with the intentions or wishes of the real party in interest” (22) and that here there is no evidence that Al-Aulaqi himself “wants to vindicate his U.S. constitutional rights through the U.S. judicial system.” (23) Judge Bates emphasizes that Al-Aulaqi has frequently issued public statements since public reports that he was to be targeted came to light, and has expressed no interest in a legal challenge in U.S. courts, and that Al-Aulaqi’s statements frequently denounce the U.S. legal system, U.S. laws, and international law.

B. Third Party Standing: Next, the court considers whether the father can establish third-party standing (jus tertii), which entails four elements: the representative must show he himself has suffered an injury-in-fact; the representative must have a close relationship to the third party; there must be an obstacle preventing the third party from asserting his rights directly; and there must be no conflict between the interests of the representative and the third party.  Judge Bates concludes that none of these elements are satisfied, in part for the reasons noted above.

II. Does the Alien Tort Statute Claim Withstand a 12(b)(6) Motion to Dismiss?

The court also concludes that plaintiff’s separate ATS claim must be dismissed for failure to state a claim.  Judge Bates explains:

plaintiff cites no case in which a court has ever recognized a “customary international law norm" against a threatened future extrajudicial killing, nor does he cite a single case in which an alien has ever been permitted to recover under the ATS for the extrajudicial killing of his U.S. citizen child. These two features of plaintiff's ATS claim -- that it is based on a threat of a future extrajudicial killing, not an actual extrajudicial killing, that is directed not to plaintiff or to his alien relative, but to his U.S. citizen son -- render plaintiff's ATS claim fundamentally distinct from all extrajudicial killing claims that courts have previously held cognizable under the ATS. (52)

Separately, the court concludes that in any event the suit is tantamount to an action against the United States government itself, thus implicating sovereign immunity.  The ATS does not itself wave the sovereign immunity of the United States, and thus the plaintiff invoked both the immunity waiver of the Administrative Procedure Act (for non-monetary relief) and the so-called Larson-Dugan exception.  As to the APA waiver, it is inapplicable as to suits naming the President himself (as the President is not an “agency” under the Act), and the court concludes that the best reading of the APA is to construe that same rule to extend to the Secretary of Defense and the Director of the CIA for purposes of this particular fact pattern.  Judge Bates explains that in the final analysis, it is appropriate to exercise the court’s “equitable discretion” not to grant the requested relief in this instance, (61) in light of the foreign affairs and separation of powers concerns at issue.  As to the Larson-Dugan exception, the court explains that this exception has no application to activity “authorized by the sovereign as opposed to private wrongdoing.” (64).

III. Do the claims in any event constitute non-justiciable political questions?

The court notes the classic Baker v. Carr formula listing six factors for consideration under this heading, but also notes the fundamental indeterminacy of that test.  The court then notes that “[a]n examination of the specific areas in which courts have invoked the political question doctrine reveals that national security, military matters and foreign relations are "'quintessential sources of political questions,'" while also observing that it does not follow automatically that all such cases must be dismissed as non-justiciable.

In this instance, Judge Bates explains,

Judicial resolution of the "particular questions" posed by plaintiff in this case would require this Court to decide: (1) the precise nature and extent of Anwar Al-Aulaqi's affiliation with AQAP; (2) whether AQAP and al Qaeda are so closely linked that the defendants' targeted killing of Anwar Al-Aulaqi in Yemen would come within the United States's current armed conflict with al Qaeda; (3) whether (assuming plaintiff's proffered legal standard applies) Anwar Al-Aulaqi's alleged terrorist activity renders him a "concrete, specific, and imminent threat to life or physical safety," see Compl., Prayer for Relief (c); and (4) whether there are "means short of lethal force" that the United States could "reasonably" employ to address any threat that Anwar Al-Aulaqi poses to U.S. national security interests, see id. Such determinations, in turn, would require this Court, in defendants' view, to understand and assess "the capabilities of the [alleged] terrorist operative to carry out a threatened attack, what response would be sufficient to address that threat, possible diplomatic considerations that may bear on such responses, the vulnerability of potential targets that the [alleged] terrorist[] may strike, the availability of military and nonmilitary options, and the risks to military and nonmilitary personnel in attempting application of non-lethal force." Defs.' Mem. at 26; see also Mot. Hr'g Tr. 38:6-14. Viewed through these prisms, it becomes clear that plaintiff's claims pose precisely the types of complex policy questions that the D.C. Circuit has historically held non-justiciable under the political question doctrine. (68-69)

That Al-Aulaqi is a citizen did not sufficiently alter this analysis:

While it may be true that "the political question doctrine wanes" where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. Indeed, in one of the only two cases since Baker v. Carr in which the Supreme Court has dismissed a case on political questiongrounds, the plaintiffs were U.S. citizens alleging violations of their constitutional rights. See Gilligan v. Morgan, 413 U.S. 1, 3 (1973). (78)

IV. Does the state secrets privilege also require dismissal?

The court declines to rely on this argument on the theory that it is unnecessary to do so, though it suggests that the argument probably would have succeeded:

Under the  circumstances, and particularly given both the extraordinary nature of this caseand the other clear grounds for resolving it, the Court will not reach defendants' state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue.17 But in any event, because plaintiff lacks standing and his claims are non-justiciable, and because the state secrets privilege should not be invoked "more often or extensively than necessary," see Jeppesen Dataplan, 614 F.3d at 1080, this Court will not reach defendants' invocation of the state secrets privilege. (83)