Government Moves to Dismiss Targeted Killings Case

The government late last week moved to dismiss Al-Aulaqi v. Panetta, the case for civil damages brought by family members of those killed in the government's targeted killing of Anwar al-Aulaqi.  We covered the complaint here; the ACLU, which represents the plaintiffs, has a case page here.

The government's motion isn't a surprise.  It raises all the expected separation-of-powers arguments, plus a couple others.  As the motion notes, the tide of recent circuit rulings is behind it--at least insofar as several circuits have dismissed similar torture cases against high-level government officials because they raised "special factors" under a Bivens analysis.  That seems the likely result here, too.

This excerpt from the introduction pretty well summarizes the government's position:

But courts have recognized that the political branches, with few exceptions, have both the responsibility for--and the oversight of--the defense of the Nation and the conduct of armed conflict abroad.  The Judiciary rarely interferes in such arenas.  In this case, Plaintiffs ask this Court to take the extraordinary step of substituting its own judgment for that of the Executive.  They further ask this Court to create a novel damages remedy, despite the fact that--based on Plaintiffs' own complaint--their claims are rife with separation-of-powers, national defense, military, intelligence, and diplomatic concerns.  Judicial restraint is particularly appropriate here, where Plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the U.S. defense and intelligence communities.  Under these weighty circumstances, this Court should follow the well-trodden path the Judiciary--and particularly the D.C. Circuit--have taken in the past and should leave the issues raised by this case to the political branches.

Memo at 1.

More particularly, the government argues that the political question doctrine bars the court from hearing this case; that "special factors" counsel against a judicial remedy under Bivens; and that the defendants enjoy qualified immunity.

The government also argues that the plaintiffs failed to plead that they had capacity to sue as representatives of the killed.  Under Federal Rule of Civil Procedure 17(b), the plaintiffs can act as representatives of an estate only if the law of the jurisdiction where the court sits allows.  Here, the government says that they didn't comply with the requirements of D.C. law.

Finally the government claims that the plaintiffs' bill of attainder claim fails, because the Bill of Attainder Clause doesn't apply to executive actions (it only applies to bills).

Circuits that have ruled on government actor liability for torture have announced the courts closed for this kind of case.  If this recent history is any guide, this case, too, will have a hard time getting off the ground.

SDS