What ACLU and CCR Won in al-Aulaqi

By Jack Goldsmith
Tuesday, December 7, 2010, 6:32 PM

Judge Bates wrote a solid, careful, and in my view persuasive opinion in al-Aulaqi.  The opinion is clearly a victory for the government.  But it was not without small victories for ACLU, CCR, and others who want to establish judicial limits on presidential targeting authorities.  Consider:

  • The court stated that if Al-Aulaqi “peacefully present[ed] himself at the U.S. Embassy in Yemen and express[ed] a desire to vindicate his constitutional rights in U.S. courts,” then “both international and domestic law would require [that] the United States would be 'prohibit[ed] [from] using lethal force or other violence against him . . . .'”  (citing government's brief for last internal quotation).  The only domestic law precedent the court cites for this proposition is Tennessee v. Garner, 471 U.S. 1 (1985), a domestic law enforcement, Fourth Amendment case.  The court’s statement is probably a dictum.  But it may well be the first time that any court has suggested that domestic law limits the Commander in Chief’s wartime targeting authorities, even to a small degree, outside the United States.
  • In its standing analysis, the court states that “it is possible that Anwar Al-Aulaqi would not even need to emerge from ‘hiding’ in order to seek judicial relief.”  This statement is a bit tentative, but then the court adds: “The use of videoconferencing and other technology has made civil judicial proceedings possible even where the plaintiff himself cannot physically access the courtroom.  For example, courts frequently entertain habeas corpus petitions from detainees at Guantanamo Bay despite the fact that those detainees are not present in the courtroom. . . . There is no reason why – if Anwar Al-Aulaqi wanted to seek judicial relief but feared the consequences of emerging from hiding – he could not communicate with attorneys via the Internet from his current place of hiding.”
  • The court makes clear that it “does not hold that the Executive possesses ‘unreviewable authority to order the assassination of any American whom he labels an enemy of the state.’”  Instead, the court describes its political question doctrine holding as follows: “the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an ‘operational’ member of AQAP, presents such a threat to national security that the United States may authorize the use of lethal force against him.”  One might read the court’s political question doctrine analysis as a whole to be limited to (i) ex ante requests for relief concerning (ii) targeting decisions (iii) outside the United States, (iv) based on the intelligence assessments and representations of the DNI, (v) that the person seeking relief is an operational member of a group covered by the AUMF.

In short, in a case the government wins that technically rules only on threshold issues, the court (a) states that domestic law governs the president’s targeting power outside the United States, to some degree; (b) implies that someone deemed a terrorist by the government who is hiding in another country can have standing to seek judicial relief; and (c) limits its political question ruling to terrorist targets approved by Congress and the DNI.  I should note that points (a) and (c) were points stressed in the government’s briefs as limiting principles.  If they are small victories for ACLU and CCR, they are victories invited by the government.  But whatever their origins, these points are now in a judicial opinion.  They are all new developments in the judicial regulation of wartime that will influence executive branch lawyers, and thus shape USG targeting decisions, going forward.