Despite the day (TGIF!), the weather (95 degrees and rising), and other developing national security news, the E. Barrett Prettyman Courthouse security checkpoint was brimming with people primed to hear oral arguments on the defendants’ motion to dismiss in Al-Aulaqi v. Panetta. This being Washington in the summer, interns were predictably everywhere: at the defendants’ table, in the jury box, and in the audience. District Court Judge Rosemary Collyer’s reaction to the crammed courtroom: “Holy Cow.”
The court began with some housekeeping: identifying the attorneys who would be speaking on behalf of the parties, confirming the issues to be discussed, and addressing the all-important issue of name pronunciation. The judge seemed surprised to find that only one representative would be speaking for the defendants---deputy assistant attorney general Brian Hauck. Arguing before the court on behalf of the plaintiffs were the CCR’s Pardiss Kebriaei on the political question doctrine and the ACLU’s Hina Shamsi on qualified immunity.
As we expected, the vast majority of the 90 minutes of oral arguments was devoted to the political question doctrine. The government stuck largely to emphasizing executive and legislative oversight over the targeted killing program, and the complex and time-sensitive nature of the policy questions involved in the process. Defendants seemed to be priming the case for a D.C. Circuit appeal.
To the plaintiffs, the matter was a “quintessential Bivens case,” and failing to provide remedy here would leave U.S. citizens on the “kill list” without judicial recourse. The plaintiffs repeatedly referenced the much-maligned leaked DOJ White Paper, occasionally characterizing disclosures in the paper as legal concessions and prompting Judge Collyer to observe at one point that the White Paper was not to be confused with the government’s litigating position in this case.
The judge-attorney colloquies touched on a variety of issues, including the limits of the executive’s authority in targeting operations, the distinction between the existence of a constitutional right and vindication of that right, whether the issues present judicially manageable standards, and the constitutional claims of targeted U.S. citizens versus those of collateral victims.
Speaking for the government, Brian Hauck proposed beginning with background and then addressing the issues: political question, Bivens and qualified immunity. Noting “there isn’t much argument about the facts”---except with respect to “the son who has died”---Judge Collyer advised the government to jump right in. Hauck began by noting that President Obama had welcomed dialogue on the difficult issues at bar, notably in his May 23, 2013 speech at National Defense University. That dialogue could not occur, however, through personal liability suits. Hauck clarified that the government’s assertion was not that the questions were too sensitive to be adjudicated; rather that they were properly articulated with precision and then assessed using the test set forth in Baker v. Carr.
Judge Collyer cut in before the government could make much headway in its exposition on El-Shifa. She pointed out that this case was distinguishable in that it involved U.S. citizens who had been killed by U.S. strikes. The government was asserting that the president, with congressional oversight, had the authority to kill any citizen abroad who fulfilled its “kill list” criteria.
Later, Hauck emphasized that the facts in this case were narrow, spurring Judge Collyer to point out that the defendants’ argument was not. This essentially sums up the source of the tension during the judge’s first go with the defendants. “We’re talking past each other,” Judge Collyer declared toward the end of the first exchange, stating that the government was not grappling with the problems it was posing for her, but rather grappling with why she shouldn't even consider the problem. She appeared frustrated with the government’s inability---or refusal---to propose a rule that would serve to limit the executive’s power to target U.S. citizens abroad. Several times, she described the notion that the court has no authority with respect to the constitutional issues at bar as “disconcerting” and “troubling.” At one point, Hauck informed her that there were “checks” on the executive in the form of extensive internal review, prompting Judge Collyer to cut in: “No, no.” The executive cannot effect a check on itself.
In response, the government aimed to highlight the “robust congressional review process” before launching back into its non-justiciability arguments. “Believe me, I understand the political question doctrine,” said Judge Collyer. She was well-versed, she continued, in the finer points of the doctrine (being a federal judge and all). Her interest was in ascertaining the limits on the executive’s authority to kill any citizen it deemed a threat abroad. “Where is the limit?” she asked yet again. And this time she proposed an answer: “The limit is the courthouse door.”
The government’s fumbles seemed to stem from its refusal to acknowledge the full implications of its arguments with a simple yes or no. For example, Judge Collyer asked the government to confirm that its position was that Bivens could not possibly apply to officials dealing with military and foreign policy at the highest levels---and that a Bivens remedy was unavailable not just here but for any U.S. citizen making similar claims. The government’s answer: “Congress could create one.” This prompted Judge Collyer to point out that would create a statutory claim, not a constitutional one. The defendants responded by taking a hard turn back to its political question doctrine argument, pointing to other contexts in which important rights were at issue but could not be adjudicated, for reasons such as standing and the Federal Tort Claims Act foreign country exception. The courts weren’t going to reach the merits of every constitutional claim, Hauck continued, attributing this to constitutional design. Again, Judge Collyer declined to be lectured, dryly noting that yes, constitutional structure included three branches, and "I happen to be the third." This prompted courtroom chuckles, but Judge Collyer pressed on with the sobering breadth of the government’s claims: the U.S. is a nation of law, but the executive’s claim to power “ha[d] no end to it.” She stated simply, “I need to know the end of that argument.”
In search of an end, Judge Collyer sought to establish a logical beginning. She proposed a hypothetical, involving a war between the United States and Switzerland (which triggered laughter in the courtroom), and described U.S. citizens being killed in battle after taking up arms against the U.S. on behalf of Switzerland. “I think there is no claim,” she said. But instead of agreeing, Hauck referred back to the President’s NDU speech and averred that the government cannot target Americans without due process of law. Judge Collyer asked pointedly where the due process was in the case before her. Hauck cited extensive internal executive review. “No, no,” Judge Collyer responded: the executive cannot be considered an effective check on itself.
“The defendants’ arguments aren’t just wrong. They’re dangerous,” began the plaintiffs. Throughout their colloquies with Judge Collyer, Kebriaei and Shamsi repeatedly pointed to the government’s concession that the two strikes took place away from active hostilities, which they asserted took place outside the AUMF’s jurisdiction. The judge probed the plaintiffs as to how, when fighting with a non-state actor positioned all over the world, one can distinguish between where active hostilities are taking place and where they’re not.
Like the government, the plaintiffs had trouble articulating a coherent limiting principle for some of the principles underlying their argument, which seemed to urge the adjudication of U.S. citizens’ constitutional claims in all instances. For example, presumably in an attempt to locate common ground between the government and the plaintiffs, Judge Collyer returned to the Switzerland-U.S. war hypothetical, asking the plaintiffs whether they agreed that citizens did not suffer violation of their constitutional rights when killed in the course of taking up arms against the U.S. on the side of another nation in wartime. Rather than give the nod, the plaintiffs stated that citizenship status was an important factor, and then attempted to distinguish the active-combat hypothetical from the situation presented in the case at bar---later going so far as to call the Collyer hypothetical “a far more difficult case.” The judge pushed the plaintiffs on the assertion that the issues raised in this case offer judicially manageable standards, asking whether particulars such as whether a target poses an imminent threat, decided at the highest levels of executive and congressional authority, are subject to judicial review, and requesting a description of what discovery might look like should the case proceed. The plaintiffs declined to sketch out the contours of a discovery plan, but insisted that the court has the full capacity and authority to manage discovery, as it does in other cases that intersect with national security matters.
Judge Collyer was also interested in whether the government and the plaintiffs saw a material difference between the claims that could be raised by the targeted decedent and the claims raised by decedents who were merely collateral. The plaintiffs, on this point, maintained that the status of the victims was not pertinent to this case. When queried on this issue, at least “to the extent that there is” constitutional analysis, the government stated that the Fourth Amendment argument doesn’t apply with respect to collateral victims, who were not “seized.” The government also argued that collateral victims can’t easily be separated from those targeted themselves, and circled back to its political question doctrine argument once more.
An argument Judge Collyer didn't seem to buy: that irrespective of whether 16-year-old Abdulrahman Al-Aulaqi was a target, he was "seized" in violation of his Fourth Amendment rights. The plaintiffs sidestepped Judge Collyer's concerns, using the opportunity to assert that for political question purposes, the defendants' claim that the issues in the case did not give rise to judicially manageable standards were undermined by the fact that both parties agreed that "reasonableness" is the touchstone of Fourth Amendment analysis.
In their brief second round with the mic, the defendants noted that Bivens can deter federal officials from doing their jobs. Judge Collyer asked Hauck two final questions. First, was there a seizure? Hauck confirmed that there was a seizure with respect to Anwar Al-Aulaqi. Second, did the government agree that the AUMF applies in Yemen? Yes, Hauck averred, ending an hour and a half of winding arguments on a direct note. Wrapping up succinctly, Judge Collyer remarked on the volume of reading and studying ahead for her, and expressed her appreciation for the skillful advocacy.