As Ben mentioned on Friday, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia dismissed a Bivens suit brought by the families of Anwar al-Aulaqi, his son Abdulrahman, and Samir Khan---three U.S. citizens killed in U.S. drone strikes in 2011---seeking to hold various federal officials personally liable for their roles in those strikes.
After laying out the facts, including the U.S. Government’s admission that it targeted and killed Anwar al-Aulaqi and killed Khan and Abdulrahman al-Aulaqi incidental to drone strikes aimed at other targets, Judge Collyer first turns to the government’s argument that this case presents a nonjusticiable political question. While recognizing that the targeted killing program is grounded in the executive and legislative branches’ powers to “wage war and provide for national security,” the court explains that a U.S. citizen’s “interest in avoiding the erroneous deprivation of [his or her] life is uniquely compelling.” Because the plaintiffs allege a violation of due process under the Fifth Amendment, the court finds that this case is justiciable.
Next, Judge Collyer considers plaintiffs’ constitutional claims that the defendants violated the Fourth and Fifth Amendments. The court quickly dispenses with the Fourth Amendment “unreasonable seizure” claim by noting that plaintiffs do not allege that the government “seized” the decedents. The defendants killed the decedents, rather than capture them, and so there cannot be a Fourth Amendment claim. Judge Collyer similarly dismisses the defendants’ Fifth Amendment due process claims on behalf of Adulrahman al-Aulaqi and Khan because “[m]ere negligence does not give rise to a constitutional deprivation” of due process, and Abdulrahman and Khan “were not targeted and their deaths were unanticipated.” However, because plaintiffs allege that Anwar al-Aulaqi was intentionally targeted and killed by defendants, the court finds that the plaintiffs’ complaint “states a ‘plausible’ procedural and substantive due process claim on behalf of Anwar al-Aulaqi.”
A plausible claim is not enough to save the plaintiffs’ case, however. Judge Collyer finds that even if the government violated Anwar al-Aulaqi’s due process rights, there is “no available remedy under U.S. law for this claim.” No court has found, nor even discussed, whether Bivens remedies are available for deprivation of life without due process based on the overseas killing by U.S. officials of a U.S. citizen considered to be an enemy combatant. In analogous due process-based Bivens actions for military detention and alleged abuse of U.S. citizens, the court points out that circuit courts, including the D.C. Circuit in Doe v. Rumsfeld, “have decided that special factors—including separation of powers, national security, and the risk of interfering with military decisions—preclude the extension of a Bivens remedy to such cases.” Because Congress in the 2001 Authorization for Use of Military Force granted the president the power to “use necessary and appropriate military force against al-Qa’ida and affiliated forces,” the court “hesitate[s] before implying a Bivens claim” challenging the executive branch’s exercise of that authority. The U.S. government has determined that Anwar al-Aulaqi was a member of al-Qaeda in the Arabian Peninsula and a threat to U.S. national security and the court will not challenge that assessment.
After granting the defendants’ motion to dismiss, Judge Collyer reprimands the government for refusing to provide the court with classified declarations that purport to show that Anwar al-Aulaqi was an enemy combatant and a member of al-Qaeda in the Arabian Peninsula killed in the course of an armed conflict. Judge Collyer writes that the government’s “truculent opposition” to the court’s order requesting the declaration “made this case unnecessarily difficult,” warning that she would have denied the motion to dismiss “[w]ere the Court not able to cobble together enough judicially-noticeable facts from various records.”