Tuesday, December 7, 2010
Judge John D. Bates (D.D.C.) today dismissed Nasser Al-Aulaqi's case on behalf of his son, Anwar Al-Aulaqi, to stop the administration from killing his son. Anwar is a U.S. citizen tagged by the Obama administration as a terrorist and targeted for extrajudicial killing. We most recently posted on the case here.
The 83-page opinion in Al-Aulaqi v. Obama concludes that Nasser lacks standing, failed to allege a violation of the Alien Tort Statute, and that the case raises non-justiciable political questions. (Judge Bates declined to rule on the administration's state secrets claim.) The ruling does not address the merits--except to say that that the case is "unique and extraordinary."
Judge Bates ruled that Nasser lacks standing as next-friend or under third-party-standing rules. According to Judge Bates, Nasser failed to explain why Anwar could not appear in court himself and failed to show that he would be truly dedicated to Anwar's best interests. (Judge Bates wrote that "no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities"--even, apparently, if he is subject to killing or indefinite detention as a terrorist if he shows up. Judge Bates also ruled that Nasser did not show that Anwar even wanted to bring this case--and therefore Nasser did not show that he was representing Anwar's best interests.) Moreover, Nasser did not allege a sufficient harm--loss of his relationship with his son--to support third-party standing.
Next Judge Bates ruled that Nasser failed to satisfy the requirements of the Alien Tort Statute--both that he suffered a legally cognizable tort that rises to the level of a customary international law norm, and that the U.S. waived sovereign immunity. As to the former, Judge Bates ruled that a threatened extrajudicial killing is not a violation of customary international law (even if an actual extrajudicial killing is). Moreover, this case has a complicating factor: an alien (Nasser) brings the case on behalf of a citizen (Anwar). The ATS doesn't allow for this. As to the latter, the U.S. has not waived immunity.
Finally, Judge Bates ruled that the case is barred by the political question doctrine. Resolution of the case would require the court to delve into complicated issues of foreign affairs and national security, and therefore the court must abstain.
The opinion recognizes the importance and the complicated and troubling nature of the case--on both sides. (It starts with a series of questions like this: "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen for death?" And this: "Can a U.S. citizen--himself of through another--use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for 'jihad against the West,' and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States?" Good questions, indeed.) But it doesn't address these, at least not directly. Instead, it dismisses the case largely on non-merits issues. In so doing, the court leaves the substantive questions for the political branches--here, the executive alone. In short, under this opinion there doesn't appear to be a way that a U.S. citizen could safely challenge an ordered extrajudicial killing through the U.S. courts: Upon revealing her- or himself, she or he would almost certainly be killed or detained (indefinitely). (If the latter, she or he could challenge the detention by way of habeas, but could apparently not challenge the ordered killing.) This apparently leaves unchecked power in the hands of the executive to order killings of anyone, including U.S. citizens, it deems a terrorist.
Recognizing the "drastic nature" of the government's power, Judge Bates tried to limit the ruling in two ways--limiting the political question analysis to the facts, and declining to rule on the state secrets privilege. But in the end, the holdings on standing, the ATS, and even the political question doctrine mean that targets of extrajudicial killings have no real way to challenge the government in the courts.