What the Government’s Al-Aulaqi Brief Reveals [Updated]

By Jack Goldsmith
Sunday, September 26, 2010, 8:10 AM

The USG’s brief in Al-Aulaqi, the targeted killing case, reveals a great deal about the Obama administration’s thinking about its legal authorities.

1.         Perhaps  most noteworthy is the brief's reliance on the president’s exclusive Commander-in-Chief authorities.  The thrust of the political question doctrine argument is that the President, in a war authorized by Congress or otherwise lawful, has the exclusive authority, vis a vis courts, to make targeting determinations.  The brief argues in particular (and without citation) that whether force can be used against a U.S. citizen who poses an imminent threat, what response the threat may warrant, and what criteria should be used in making these determinations, are “all judgments reserved to the President and his military and intelligence advisors ” (my emphasis).  This argument is correct, I believe, and consistent with the views of past presidents.  But it is remarkable coming from an administration that has self-consciously eschewed reliance on exclusive Article II commander-in-chief powers in its public argumentation.

2.         The brief comes close to confirming, without quite doing so, that (as I speculated) the administration is relying on or preserving an Article II “inherent authority” argument as a basis for targeted killing.  This is the meaning, I think, of the statement in the brief that “[i]n addition to the AUMF, there are other legal bases under U.S. and international law for the President to authorize the use of force against al-Qaeda and AQAP, including the inherent right to national self-defense recognized in international law” (my emphasis).  The other legal bases may include covert action and analogous Title 10 authorities, but as I explained in my last post, they likely include as well Article II authority.

3.         Charlie Savage reported earlier this year that administration lawyers were divided about whether the AUMF’s “authorization of force” properly extended beyond members of al Qaeda to “supporters” of al Qaeda.  Savage said that the administration had avoided resolving the support prong in part by expanding the notion of who could be considered a member of al Qaeda.  A third possibility for bringing a person or group under the AUMF, not mentioned in the Savage piece, is that the person or group is a co-belligerent or associated force.  The government still has not determined (at least for litigation purposes) which AUMF box al-Qaeda in the Arabian Peninsula (AQAP) -- the group in which Al-Aulaqi has an operational role -- fits into.  The government’s brief carefully says: “The United States has further determined that AQAP is an organized armed group that is either part of al-Qaeda, or is an associated force, or co-belligerent, of al-Qaeda ….”

4.         The administration clearly would have preferred not to make the state secrets argument.  Not only did it make the argument last, and openly grudgingly.  It also asked Judge Bates to sequence briefing so that state secrets briefing could be delayed until the court addressed and rejected the other threshold arguments.  Judge Bates “declined the Government’s suggestion” and “directed that the Government present all of its arguments in opposition to the motion for a preliminary injunction in a single brief.”  (P. 43, n. 20)

Update:  In connection with my argument 1 (about the exclusive commander in chief argument), I should note that the USG’s brief says nothing explicit about disregarding statutes (or about not doing so).  Nor does it say anything about whether the case would be nonjusticiable if force were used against an organization against which Congress has not authorized force. The USG brief thus does not commit itself to Article II exclusivity in this latter context; nor does it rule such exclusivity out.  What the brief says is that “courts cannot assess the merits of the President’s decision to launch an attack on a foreign target” (internal citations omitted).  It further says that whether and when to use such force are “judgments reserved to the President and his military and intelligence advisors.”   I think the natural interpretation of those words is that, in a war authorized by Congress or otherwise lawful, targeting decisions are for the president alone.