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Judge “troubled” over drone killing powers

The Obama administration’s argument that federal judges should not “second-guess” the government policy of using unmanned aerial drones overseas to kill suspected terrorists, even if they are U.S. citizens, drew a strong and sustained negative response Friday morning from a federal judge in Washington.  “The question is: how far does your argument take you? Where is the limit to this? Where does that stop?” U.S. District Judge Rosemary M. Collyer asked a government lawyer during a one-hour, twenty-minute hearing.

The hearing was focused on a Justice Department plea to dismiss, without a full trial, a claim to hold former government officials to blame legally for the killings by two drone strikes in Yemen of a U.S. citizen and his sixteen-year-old son.  The father, Anwar Al-Aulaqi, was specifically targeted, government officials have said, but the son, Abdulrahman, was not.

The case of Al-Aulaqi v. Panetta (District docket 12-1192) is being pursued as a constitutional claim by Nasser Al-Aulaqi, the father and grandfather of the U.S. citizens who died in separate drone attacks nearly two years ago.   The case is now unfolding, in a pre-trial stage, in the wake of public disclosures by President Obama and Attorney General Eric Holder of details of the specific incidents as part of the president’s suggestion that there be a new national “dialogue” about the use of drones, especially when U.S. citizens are killed.

Brian Hauck, a deputy assistant attorney general, told Judge Collyer of the president’s encouragement for a national discussion about the issue, but argued that “the dialogue cannot occur” during a private lawsuit in federal court.  The question of whether limits should be put on the use of drones, and who may be targeted, is a political issue that the Constitution assigns solely to the president and Congress, Hauck argued.

The courts, he added, do not have the capacity to answer the myriad questions about military and foreign policy that are involved in conducting anti-terrorist operations.

“And so, as a result of that,” Judge Collyer quickly retorted, “a targeted individual has no constitutional right at all.”   When Hauck responded that it was not a question of having a constitutional right, but of whether a court can rule upon such a right in this context, Collyer commented: “Where else could one assert a constitutional right, if not in an Article III court?”

The judge remarked that she understood the “political question doctrine,” and said she, as a judge, had applied it.  She went on, bluntly: “I understand the law, but what I am trying to understand is, where is this cabined?…The Executive is not an effective check on the Executive with regard to an individual’s rights.  You cannot ask a judge to hold that only the Executive will check himself.”

The constitutional limit, she suggested, “is the courthouse door.  And yet you say there is no courthouse door.”

When Hauck countered that the President had been working in tandem with Congress to keep the drone policy in check, Judge Collyer said that “the Constitution has [established] three branches. But you say that Articles I and II overcome the obligation of an Article III court to interpret the Constitution….I consider us a nation of laws.  That’s what we’re talking about.  Everyone from the President down to the homeless person has to follow the law.  Your argument has no end to it.”

She added: “You claim full authority for the President and Congress, with no oversight [from a court].  That is very troubling.”

The judge, though clearly excited throughout the government’s part of the hearing, appeared far less engaged during the arguments of two lawyers for the Aulaqi family — Pardiss Kebriael of the Center for Constitutional Rights and Hina Shamsi of the American Civil Liberties Union.

Although both of those lawyers sought to show that the lawsuit was actually very narrow in scope, and that their side and the government were not far apart on some crucial issues in the case. the judge did display some skepticism about what kind of trial she would be managing if she did reject the government motion to dismiss, and let the case proceed.

The judge sought to find out just how far the challenging lawyers would seek to go, in preparing for the trial, to probe into the decision-making process on when drones were to be used and against whom.   And, at one point, she seemed openly skeptical about her capacity as a judge to decide when the United States faced an “imminent” threat from terrorism, when that issue had been explored “at the highest levels of the government and Congress.”

As the judge brought the hearing to a close, she said that she would have to do “a lot of reading,” because “I do not consider this a particularly easy set of questions.”  At this point, her only legal obligation is to decide for or against dismissing the case.  Thus, she reminded the lawyers that her questions during the hearing had been designed to get a clearer understanding of what the two sides were arguing on that point.

Recommended Citation: Lyle Denniston, Judge “troubled” over drone killing powers, SCOTUSblog (Jul. 19, 2013, 1:20 PM),