About a month ago, the ACLU and the CCR submitted a joint lawsuit with Anwar Awlaki’s father attempting to prohibit the US government from killing Awlaki in a targeted assassination. The plaintiff submitted a request for a preliminary injunction on any targeted killing operation directed against Awlaki along with a memorandum in support of the motion. The memorandum stated that:
Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury. The summary use of force is lawful in these narrow circumstances only because the imminence of the threat makes judicial process infeasible. A targeted killing policy under which individuals are added to kill lists after a bureaucratic process and remain on these lists for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.
The government’s refusal to disclose the standard by which it determines to target U.S. citizens for death independently violates the Constitution: U.S. citizens have a right to know what conduct may subject them to execution at the hands of their own government. Due process requires, at a minimum, that citizens be put on notice of what may cause them to be put to death by the state.
Through this action, Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death.
The plaintiff further argued that the injunction should be granted because they have “a substantial likelihood of success on the merits.” In support of this, they argued that the targeted killing of a US citizen abroad outside of armed conflict would violate the Fourth and Fifth Amendments to the US Constitution as well as international law, which is actionable in US courts under the Alien Tort Statute. Today, the Obama administration has finally responded to the injunction request by asking the court to dismiss the lawsuit altogether based on a total of five legal arguments:
- The plaintiff lacks any standing to file the suit on behalf of Awlaki
- The court has no authority to decide on “non-justiciable” political questions
- Injunctions are an “extraordinary remedy” that the court should use with equitable discretion
- The plaintiff lacks a cause of action under Alien Tort Statute
- Any continuation of the suit could endanger state secrets
Media coverage of this latest legal action has focused mostly on the last argument: the state secrets privilege. However, it is worth explaining the reasoning behind all five arguments. This will be a two part posting. Today, I will cover the first two and tomorrow I will cover the last three.
Nasser al-Aulaqi, father of the assassination target, initially filed the suit based on “next friend” standing to protect his son’s Constitutional rights. The government cites the Supreme Court’s ruling in Whitmore v. Arkansas (1990) in order to get an explanation of the “two firmly rooted prerequisites” to this type of standing:
First, a “next friend” must provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a “next friend” must have some significant relationship with the real party in interest.
The next friend is not said to be a party to the case, he “simply pursues the cause on behalf of the [incompetent or unavailable party], who remains the real party in interest.” The government cites other claims:
- “Next friend” standing has historically only accepted by the Supreme Court in habeas cases in which the plaintiff is mentally incompetent. Furthermore, this right in of itself has been explicitly authorized by US statute.
- The plaintiff has not established that Awlaki lacks access to US courts or is even interested in filing such a lawsuit.
- Plaintiff is seeking relief for purported inury that is “conjectural,” “hypothetical” or “abstract” and is not “concrete and particularized” and “actual or imminent. For this reason, the plantiff lacks Article III standing. See para. 560 of Lujan v. Defenders of Wildlife (1992) for cited precedent.
II. POLITICAL QUESTION
The government’s intro to this argument is worth quoting in full:
Plaintiff seeks judicial oversight of the Government’s decisions with respect to a foreign organization against which the political branches have authorized the use of all necessary and appropriate force. The particular relief plaintiff seeks would constitute an ex ante command to military and intelligence officials that could interfere with lawful commands issued by the President, who is constitutionally designated as Commander-in-Chief of the armed forces and constitutionally responsible for national security. Moreover, enforcement of such an injunction would insert the Judiciary into an area of decision-making where the courts are particularly ill-equipped to venture, i.e., in assessing whether a particular threat to national security is imminent and whether reasonable alternatives for the defense of the Nation exist to the use of lethal military force. Courts have neither the authority nor expertise to assume these tasks.
The government prominently cites the Supreme Court decision in Baker v. Carr (1962) and a DC District Court ruling in Doe v. State of Israel (2005). It quotes from Baker para. 217 to establish five common markers of cases that can be thrown out under the political question doctrine:
Prominent on the surface of any case held to involve a political question is found (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or (5) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
At the same time the government does admit that “claims based on constitutionally protected interests may sometimes require the court to address the limits on the Executive’s exercise of national security powers.” But it still asserts that the specific case of Awlaki’s potential targeted killing fails any type of discriminating analysis the court could apply to it in relation to the political question doctrine.
The extraordinary declaratory and injunctive relief plaintiff seeks here would constitute ex ante commands by the Judicial Branch to the President and officials responsible for military and intelligence operations against a foreign organization as to which political branches have authorized the use of all necessary and appropriate force. Enforcement of such orders would necessarily require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force overseas against that organization. Courts are not equipped to superintend such questions.
The government argues that court enforcement of any injunction would be impossible as a practical matter. It gives a hypothetical scenario in which Awlaki is eventually killed by the government after a court order mandates that the threat he poses must be imminent and all alternatives to lethal force sought before killing him. The government argues that this would not only put the court in a difficult role of analyzing the concreteness and imminence of the threat posed by Awlaki at the time of his death, but it would also (here’s where it gets Orwellian) “call into question whether the action was justified” and “pit the Judiciary against the Executive in assessing and acting upon sensitive intelligence and diplomatic considerations in matters of national security and foreign policy.” In the words of Baker (para. 221), such a judicial intervention would inhibit the ability to put forward “a single-voiced statement of the Government’s views.”
The government is explicitly arguing that judicial oversight of the killing of an American citizen would be a bad thing specifically because the court might find the killing to be unjustified.
I’ll continue this series tomorrow with an explanation of the last three legal arguments. This is quite a doozy.