nationalsecuritylaw al-Aulaqi v. Obama (D.D.C. Dec. 7, 2010) (dismissing suit)

December 7, 2010

* al-Aulaqi v. Obama (D.D.C. Dec. 7, 2010) (dismissing suit)

Judge Bates has issued an 83-page opinion dismissing the suit brought on behalf of Anwar Al-Aulaqi by the ACLU and CCR, in the name of Al-Aulaqi’s father as plaintiff. Here is a quick-and-dirty summary of the opinion:

I. Does Al-Aulaqi’s father have standing to assert his interests?

A. Next Friend Standing: First, the court considers whether the father has standing as Al-Aulaqi’s “next friend.” The court identifies two prerequisites: the putative next friend must demonstrate that (i) the real party in interest cannot assert his rights directly and (ii) the putative next friend will be “truly dedicated” to the real party’s interests. The court finds that the father failed to satisfy either of these requirements.

1. Inability to assert rights directly:

Judge Bates writes that “while Anwar Al-Aulaqi may have chosen to "hide" from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. . . . The Court’s conclusion that Anwar Al-Aulaqi can access the U.S. judicial system by presenting himself in a peaceful manner implies no judgment as to Anwar Al-Aulaqi’s status as a potential terrorist. All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities.” (17-19) Judge Bates added: To the extent that Anwar Al-Aulaqi is currently incommunicado, that is the result of his own choice. Moreover, there is reason to doubt whether Anwar Al-Aulaqi is, in fact, incommunicado. Since his alleged period of hiding began in January 2010, see Al-Aulaqi Decl. ¶ 8, Anwar Al-Aulaqi has communicated with the outside world on numerous occasions, participating in AQAP video interviews and publishing online articles in the AQAP magazine Inspire.” (20-21)

2. Father’s dedication to Al-Aulaqi’s “best interests”:

Judge Bates also concludes that the father failed to prove sufficient commitment to Al-Aulaqi’s best interests, on the ground that a putative next friend must show “that he is acting in accordance with the intentions or wishes of the real party in interest” (22) and that here there is no evidence that Al-Aulaqi himself “wants to vindicate his U.S. constitutional rights through the U.S. judicial system.” (23) Judge Bates emphasizes that Al-Aulaqi has frequently issued public statements since public reports that he was to be targeted came to light, and has expressed no interest in a legal challenge in U.S. courts, and that Al-Aulaqi’s statements frequently denounce the U.S. legal system, U.S. laws, and international law.

B. Third Party Standing: Next, the court considers whether the father can establish third-party standing (jus tertii), which entails four elements: the representative must show he himself has suffered an injury-in-fact; the representative must have a close relationship to the third party; there must be an obstacle preventing the third party from asserting his rights directly; and there must be no conflict between the interests of the representative and the third party. Judge Bates concludes that none of these elements are satisfied, in part for the reasons noted above.

C. Result: Plaintiff lacks standing to assert any of the three constitutional claims advanced in the suit.

II. Does the Alien Tort Statute Claim Withstand a 12(b)(6) Motion to Dismiss?

The court also concludes that plaintiff’s separate ATS claim must be dismissed for failure to state a claim. Judge Bates explains: “plaintiff cites no case in which a court has ever recognized a “customary international law norm" against a threatened future extrajudicial killing, nor does he cite a single case in which an alien has ever been permitted to recover under the ATS for the extrajudicial killing of his U.S. citizen child. These two features of plaintiff’s ATS claim — that it is based on a threat of a future extrajudicial killing, not an actual extrajudicial killing, that is directed not to plaintiff or to his alien relative, but to his U.S. citizen son — render plaintiff’s ATS claim fundamentally distinct from all extrajudicial killing claims that courts have previously held cognizable under the ATS.” (52)

Separately, the court concludes that in any event the suit is tantamount to an action against the United States government itself, thus implicating sovereign immunity. The ATS does not itself wave the sovereign immunity of the United States, and thus the plaintiff invoked both the immunity waiver of the Administrative Procedure Act (for non-monetary relief) and the so-called Larson-Dugan exception. As to the APA waiver, it is inapplicable as to suits naming the President himself (as the President is not an “agency” under the Act), and the court concludes that the best reading of the APA is to construe that same rule to extend to the Secretary of Defense and the Director of the CIA for purposes of this particular fact pattern. Judge Bates explains that in the final analysis, it is appropriate to exercise the court’s “equitable discretion” not to grant the requested relief in this instance, (61) in light of the foreign affairs and separation of powers concerns at issue. As to the Larson-Dugan exception, the court explains that this exception has no application to activity “authorized by the sovereign as opposed to private wrongdoing.” (64).

III. Do the claims in any event constitute non-justiciable political questions?

The court notes the classic Baker v. Carr formula listing six factors for consideration under this heading, but also notes the fundamental indeterminacy of that test. The court then notes that “[a]n examination of the specific areas in which courts have invoked the political question doctrine reveals that national security, military matters and foreign relations are "’quintessential sources of political questions,’" while also observing that it does not follow automatically that all such cases must be dismissed as non-justiciable.

In this instance, Judge Bates explains, “Judicial resolution of the "particular questions" posed by plaintiff in this case would require this Court to decide: (1) the precise nature and extent of Anwar Al-Aulaqi’s affiliation with AQAP; (2) whether AQAP and al Qaeda are so closely linked that the defendants’ targeted killing of Anwar Al-Aulaqi in Yemen would come within the United States’s current armed conflict with al Qaeda; (3) whether (assuming plaintiff’s proffered legal standard applies) Anwar Al-Aulaqi’s alleged terrorist activity renders him a "concrete, specific, and imminent threat to life or physical safety," see Compl., Prayer for Relief (c); and (4) whether there are "means short of lethal force" that the United States could "reasonably" employ to address any threat that Anwar Al-Aulaqi poses to U.S. national security interests, see id. Such determinations, in turn, would require this Court, in defendants’ view, to understand and assess "the capabilities of the [alleged] terrorist operative to carry out a threatened attack, what response would be sufficient to address that threat, possible diplomatic considerations that may bear on such responses, the vulnerability of potential targets that the [alleged] terrorist[] may strike, the availability of military and nonmilitary options, and the risks to military and nonmilitary personnel in attempting application of non-lethal force." Defs.’ Mem. at 26; see also Mot. Hr’g Tr. 38:6-14. Viewed through these prisms, it becomes clear that plaintiff’s claims pose precisely the types of complex policy questions that the D.C. Circuit has historically held non-justiciable under the political question doctrine. (68-69) That Al-Aulaqi is a citizen did not sufficiently alter this analysis: “While it may be true that "the political question doctrine wanes" where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. Indeed, in one of the only two cases since Baker v. Carr in which the Supreme Court has dismissed a case on political questiongrounds, the plaintiffs were U.S. citizens alleging violations of their constitutional rights.See Gilligan v. Morgan, 413 U.S. 1, 3 (1973).” (78)

IV. Does the state secrets privilege also require dismissal?

The court declines to rely on this argument on the theory that it is unnecessary to do so, though it suggests that the argument probably would have succeeded: “Under the circumstances, and particularly given both the extraordinary nature of this caseand the other clear grounds for resolving it, the Court will not reach defendants’ state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue.17 But in any event, because plaintiff lacks standing and his claims are non-justiciable, and because the state secrets privilege should not be invoked "more often or extensively than necessary," see Jeppesen Dataplan, 614 F.3d at 1080, this Court will not reach defendants’ invocation of the state secrets privilege.” (83)

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nationalsecuritylaw forthcoming scholarship

December 7, 2010

* Forthcoming Scholarship

Institutionalizing Counterterrorism: A Review of Legislating the War on Terror: An Agenda for Reform (Brookings)

Adam Ross Pearlman
Engage: The Journal of the Federalist Society’s Practice Groups, Vol. 11, No. 3, pg. 107

Late last year, Benjamin Wittes compiled a series of ten essays that offer a range of suggestions for congressional action with respect to U.S. counterterrorism policies. He means for the text not to be taken as a fluid whole, but rather as a series of independent observations and examinations of the broad, complex swath of legal and policy issues encompassing the once-called War on Terror.

The authors of the various pieces range greatly in both their backgrounds and political persuasions. Contributors include noted scholars as well as practitioners, including former officials from both Democratic and Republican administrations, but, Wittes tells us, the common thread among them is "the belief in the value of legislative action to help shape the contours of the continuing U.S. confrontation with terrorism." In this period of institutionalizing counterterrorism legal authorities in such a way as to recognize evolving strategies and constantly changing tactics, this text overwhelmingly favors statutory lawmaking to establish what can be done, rather than relying on jurisprudential fiat to decree what cannot.

What follows will read more like a "book report" than a book review, but, with a modicum of commentary interspersed throughout, it offers an outline of the key points of each chapter, with the goal of piquing the reader’s interest in this interesting compilation. The ten chapters are: I. Nine Democracies and the Problems of Detention, Surveillance, and Interrogation, by Mark H. Gitenstein. II. Administrative Detention: Integrating Strategy and Institutional Design, by Matthew C. Waxman III. Long-term Terrorist Detention and a U.S. National Security Court, by Jack Goldsmith. IV. Optimizing Criminal Prosecution as a Counterterrorism Tool, by Robert M. Chesney. V. Better Rules for Terrorism Trials, by Robert S. Litt and Wells C. Bennett. VI. Refining Immigration Law’s Role in Counterterrorism, by David A. Martin. VII. Modernizing FISA: Progress to Date and Work Still to Come, by David S. Kris. VIII. National Security Issues in Civil Litigation: A Blueprint for Reform, by Justin Florence and Matthew Gerke IX. Looking Forward, not Backward: Refining U.S. Interrogation Law, by Stuart Taylor Jr. and Benjamin Wittes. X. Targeted Killing in U.S. Counterterrorism Strategy and Law, by Kenneth Anderson

"The Alien-Citizen Distinction and the Global War on Terrorism"

University of Miami Legal Studies Research Paper No. 2009-27
Lewis & Clark Law School Legal Studies Research Paper No. 2010-3

DAVID ABRAHAM, University of Miami School of Law
Email: dabraham
TUNG YIN, Lewis & Clark Law School
Email: tyin

Since the start of the modern civil rights era, the notably harsh laws of citizenship and immigration in the United States have experienced some mitigation in the critical distinctions between citizens and aliens. Societies became “soft” on the “inside” while grappling with questions of how “hard” to be toward the “outside,” the border. The retrograde effects of globalization together with our security and imperial obsessions since 9/11, however, have led to a hardening of distinctions both on the inside and toward the outside. Immigration and citizenship have become more Schmittian affairs where the worthy “us” is confronted by the enemy “other.” The power of exclusion and especially of deportation has again grown more important (as it was during the Red Scares of the post-WWI and Cold War periods), making citizenship more important. As the government seeks to undermine constitutional protections in three ways — making it irrelevant who you are, where you are, or whose custody you are in — the benefits of the legal status of “citizen” seem to be in play. At the same time, we know the importance of citizenship as a mechanism for the defense of rights, perhaps especially of minority rights. Indeed, liberal immigration scholars have spent most of the past generation fretting over the discriminatory “bonus” offered by citizenship and have worked “human rights” and “due process” discourses to undermine that bonus. Since 9/11, however, a series of important Supreme Court cases has left us with only a murky sense of what rights apply to whom and where and how much of a guarantee “citizenship” offers. In this essay, we review the salient cases and seek to identify some current baselines around these “who, where, and whom” questions.

Rights Beyond Borders


Chimène I. Keitner
University of California, Hastings College of the Law
Yale Journal of International Law, Vol. 36, 2011

The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article seeks to fill that gap. Part I provides a typology of basic approaches to rights beyond borders, which I label country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s actions outside the national territory, even vis-à-vis citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her status as one of the governed, regardless of territorial location. Conscience-based reasoning holds that a government should act the same way beyond its borders as it does within them.

Part II uses this framework to analyze the evolving jurisprudence of extraterritorial rights in three common law jurisdictions: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. This comparative analysis reveals the continued tenacity of country-based reasoning, which privileges the role of territory in conceptualizing domestic rights, even in an age of “globalization.” In the end, the most generative source of more expansive readings of domestic rights provisions might not be any comprehensive theory about the extraterritorial reach of rights, but rather individual judges’ own sense of fundamental fairness and the perceived need for a minimum set of judicially enforceable legal constraints on the action of the political branches. To date, such judicially enforceable constraints continue to be provided by domestic, rather than international, rights guarantees.

When RUF Gets Rough It Looks Like R2P: Comparing Micro-Level Rules for Use of Force in Post-Conflict Countries Challenged by Ethnic, Tribal, and Cultural Violence to Macro-Level Concepts of Humanitarian Intervention and Responsibility to Protect

Commander Scotch Perdue, JAGC, USN

Naval Law Review, Volume 60, 2010, 189

A head of state, faced with mounting evidence that another sovereign is either committing or condoning massive atrocities against the human rights (“HR”) of his or her own people, does not currently have an independent or collective responsibility under international law to intervene – but should there be one? Diplomatic efforts and various types of sanctions aimed at constraining such conduct continue to be an option, but if it becomes apparent that nothing short of use of force will suffice, what would be the legal basis for taking such action?

The Secretary-General of the United Nations intends to develop such a legal framework, called responsibility to protect or “R2P,” to protect persons from large scale HR abuses, but much still needs to be developed at an international level to define how, when, and what amount of force may be used to stop HR abuses in a foreign state. After all, if a state is unwilling or unable to intervene in HR abuses, the country still remains a diplomatic and political entity that must be respected to preserve international peace and security. Military commanders serving in so called “post-conflict” countries sometimes find themselves on the horns of a very similar dilemma when, through a clash of cultures, they face local, host nation (“HN”) officials who are unwilling or unable to stop perceived HR abuse—and may actually be officially sanctioning the abuse. Yet the commanders must maintain relationships with these officials to continue to work collectively toward local peace and security.

Just as R2P would provide international legal authority to intervene and prevent HR abuses with military force, rules for the use of force (“RUF”) generally provide legal authority for military commanders to intervene with force, up to and including deadly force, as a last resort to prevent an unlawful killing or serious bodily harm. However, having such legal authority does not necessarily make it more likely that such authority will be exercised. To the contrary, because a gun doesn’t have to be fired to “influence the debate,” simply having a weapon and the clear authority to use it may actually decrease the likelihood that a round has to be fired to prevent or minimize harm. Ultimately, this article argues for an extremely gradual transition in both micro and macro contexts from externally-enforced to internally-embraced efforts to preserve progress and prevent backsliding into an environment that permits HR violations.

Infiltrating American Intelligence-Difficulties Inherent in the Congressional Oversight of Intelligence and the Joint Committee Model

Patrick J. Donaldson, American University, Washington College of Law

American Intelligence Journal (2010)

The structure of intelligence oversight has been debated recently as the need is seen to grow. The current structure of intelligence oversight has been rendered ineffective by partisanship and lack of area expertise. Reform of congressional oversight has proven itself necessary. There have been numerous and varied proposals on how to reform the intelligence community in recent years. However, the 9/11 Commission’s use of a single, joint committee like the Joint Committee on Atomic Energy would not function as effectively as similar examples in the past. Regardless, every proposal of the 9/11 Commission has been addressed in some form except reform of oversight, even if not as a joint committee.

Through understanding the need for oversight; current structure and flaws of congressional oversight; and the various proposals to reform oversight, Congress can be an effective safeguard against potential abuses of civil rights, civil liberties and resources in the intelligence community. In this Article, I argue for the necessity of oversight in the intelligence context to prevent serious abuses and the balance between oversight and sensitive information. I then analyze Congress’s power to review and make policy for executive branch intelligence agencies and outline the difficulties facing oversight, including: trying to oversee highly trained secret keepers and the current structure of politics and oversight. This Article then critiques proposed solutions to effective oversight reform. In the face of reform proposals, such as the 9/11 Commission’s mandate for a joint committee similar to the Joint Committee on Atomic Energy used from the 1940s through the 1970s, this Article responds, not by changing the committee structure, but by consolidating jurisdiction into the existing intelligence committees and making service on those committees a desirable post. Additionally, it asserts the Government Accountability Office should have audit authority over the intelligence community, as has been debated in Congressional hearings recently.