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Drone killing policy withstands challenge

The Obama administration’s use of unmanned drones to kill terrorism suspects overseas has withstood its strongest legal challenge — a constitutional lawsuit by the father of a U.S. citizen slain by a missile strike in Yemen nearly three years ago.  The case was dismissed on Friday in a forty-one-page decision by a federal judge in Washington, D.C., Rosemary M. Collyer.  Her ruling can be appealed.

Although government officials did not win on their plea that such claims should be barred completely from the courts, they did win on their argument that the courts cannot create a remedy for targeted killings without intruding on the powers of the president and Congress to wage war.

The case grew out of the targeted killing of Anwar Al-Aulaqi in September 2011 as he rode in a vehicle in the Yemeni province of al-Jawf, some ninety miles outside of the nation’s capital, Sana’a.  Al-Aulaqi, who was born in the U.S. and had dual U.S. and Yemeni citizenship, had been put on a U.S. “kill list” for allegedly leading Al-Qaeda terrorism efforts in the Arabian peninsula.  Officials said they had decided he could never be captured.

Among other episodes of terrorism, the government said he helped inspire and prepare the “underwear bomber” — Umar Farouk Abdulmutallab — who failed in an attempt to blow up an airliner over Detroit on Christmas Day in 2009, and counseled the Army psychiatrist, Major Nidal Malik Hasan, who shot and killed thirteen fellow soldiers and wounded thirty others in a rampage at Fort Hood, Texas, in November 2009.  However, Al-Aulaqi was never charged with or prosecuted for any crime.

Al-Aulaqi’s father, Nasser Al-Aulaqi, has been attempting for nearly four years to challenge the drone policy — first, in a plea for a court to forbid its enforcement against his son before the son actually was killed, and, second, in a lawsuit to recover money damages from high administration officials after he was struck down by a drone missile.

The first attempt failed in 2010, when U.S. District Judge John D. Bates in Washington ruled that the question of the legality of the drone program was a “political question” that could not be answered by the courts, so a judge had no jurisdiction to hear the challenge.  That case named President Obama, then-Defense Secretary Robert M. Gates, and then-Central Intelligence Agency Director Leon E. Panetta.

After the drone strike ended Al-Aulaqi’s life, his father returned to federal court, this time pursuing the damages claims against Panetta, who by then had become Defense Secretary, then-CIA Director David H. Petraeus, and two other officials claimed to be directly involved in running the drone program — Admiral William H. McRaven and Lt. Gen. Joseph Votel.

The government itself was not sued in that case, since the lawsuit was an attempt to hold specific officials liable personally for the targeted killing.  The Justice Department, however, entered the case, saying that if Judge Collyer did not dismiss the lawsuit outright, the government would invoke the so-called “state secrets privilege” in a move to block it from going forward.

The officials tried to get the case dismissed on the premise that it raised a “political question” — the same plea that had led Judge Bates to end the first lawsuit.  Judge Collyer, however, ruled differently, concluding that Al-Aulaqi’s father had made a “plausible” claim that his son’s constitutional rights under the Fifth Amendment’s Due Process Clause had been violated.  The father thus had a right to file his lawsuit, and the court had the authority to rule on it, the judge concluded.

But the officials also had argued that the judge, as a matter of discretion, should conclude that no judicial remedy could properly be framed for any violation of Al-Aulaqi’s rights.  That is the point that Judge Collyer accepted.

Under a 1971 Supreme Court decision, Bivens v. Six Unnamed Federal Agents, an individual claiming a violation of constitutional rights is allowed to sue the federal official responsible.  But, since 1980, the Court has regularly refused to extend that to new claims of constitutional violations.

Judge Collyer noted that no court has ever allowed a Bivens-based lawsuit to challenge action of government officials in military affairs or national security matters.

“In this delicate area of warmaking, national security, and foreign relations,” the judge declared, “the judiciary has an exceedingly limited role.  This court is not equipped to question, and does not make a finding concerning, [officials’] actions in dealing with AQAP [Al-Qaeda in the Arabian Peninsula] generally or Anwar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.”

While she said the fact that Al-Aulaqi was a U.S. citizen had given her “pause,” she ultimately would have ruled the same if he were a foreign national, she said.

Although insisting she was not ruling on the merits of any of the constitutional claims, she did accept most of the government’s evidence about Al-Aulaqi’s role, saying explicitly that the record in the case “is replete with evidence that Anwar Al-Aulaqi was an AQAP leader.”  She added that “the fact is” that he “was an active and exceedingly dangerous enemy of the United States.”

The decision’s conclusion that the father’s lawsuit had made a “plausible” constitutional claim applied only to Al-Aulaqi, the son.  The lawsuit also had sought damages for the separate drone killings of Al-Aulaqi’s own son, sixteen-year-old Abdulrahman Al-Aulaqi, but the judge noted that officials had said that the teenager’s death was an unintentional result of a strike aimed at another terrorist figure.  Separate claims for damages were made in the lawsuit by the mother of another U.S. citizen, Samir Khan, who died in the strike that killed Al-Aulaqi.  Khan’s death, too, was accidental, officials have said.

One part of Judge Collyer’s decision contained a stinging rebuke of the Justice Department for refusing to share with the judge several secret statements about the drone program and the nature of the threat said to be posed by Al-Aulaqi.

The government had shared those with Judge Bates in the earlier case but, when Judge Collyer last December ordered that they be shared with her, too, the Justice Department refused, insisting that the judge first rule on the officials’ request that the case be dismissed on legal grounds.

Referring to this refusal as “the United States’ truculent opposition,” the judge said that it “made this case unnecessarily difficult.”  The judge said she had to go prospecting for other available records to “cobble together” the evidence that made it possible for her to decide whether the case could go forward.

If she had not located those records, she said, she would have refused to find that the Bivens claim could not proceed because she would have been unable to accept the claim that national security required such a dismissal.   As a formality, however, she wiped out her December order demanding the secret materials, since that was no longer a live issue in the case.

The survivors of those killed by the drones have the option of appealing the case to the U.S. Court of Appeals for the District of Columbia Circuit and, ultimately, to the Supreme Court.

Recommended Citation: Lyle Denniston, Drone killing policy withstands challenge, SCOTUSblog (Apr. 6, 2014, 12:30 PM),