Court: U.S. District Court for the District of Columbia

Type of decision: Memorandum Opinion

Date judgment: 7 December 2010

Case no.: 10-1469 (JDB)

Area of jurisdiction: Civil law

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Claim: The President, the Secretary of Defence, and the Director   of the CIA (“defendants”) have unlawfully authorized the targeted killing of plaintiff’s son.

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Principle legal argument(s): Defendants have violated (1) Anwar Al-Aulaqi’s Fourth Amendment right to be free from unreasonable seizures, (2) his Fifth Amendment right not to be deprived of life without due process of law. Furthermore, plaintiff argues  that (3) the United States’ refusal to disclose the criteria by which it selects U.S. citizens for targeted killing independently violates the notice requirement of the Fifth Amendment Due Process Clause and (4) he brings a statutory claim under the Alien Tort Statute (“ATS”) alleging that the United States’ policy of targeted killings violates treaty and customary international law.

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Type of reparation sought: Plaintiff seeks both declaratory and injunctive relief. First, he requests a declaration that, outside of armed conflict, the U.S. Constitution prohibits defendants “from carrying out the targeted killing of U.S. citizens,” including Anwar Al-Aulaqi, “except in circumstances in which they present a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat.” Second, plaintiff requests a declaration that, outside of armed conflict, “treaty and customary international law” prohibit the targeted killing of all individuals -regardless of their citizenship- except in those same, limited circumstances. Third, plaintiff requests a preliminary  injunction prohibiting defendants from intentionally killing Anwar Al-Aulaqi -unless he presents a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat. Finally, plaintiff seeks an  injunction ordering defendants to disclose the criteria that the United States uses to determine whether a U.S. citizen will be targeted for killing.

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Anwar Al-Aulaqi, an American-born cleric with dual U.S.-Yemeni citizenship was a member of al Qaeda and had gone into hiding in Yemen, from where he regularly propagated the jihad. The U.S. Treasury Department had allegedly put him on a ‘kill list’. Therefore his father, Nasser Al-Aulaqi, brings four claims – three constitutional and one statutory– on behalf of his son against the President (Barack H. Obama), the Secretary of Defense (Robert M. Gates) and the Director of the CIA (Leon E. Panetta). Plaintiff asserts that the United States’ alleged policy of authorizing the targeted killing of U.S. citizens, including his son, outside of armed conflict, “in circumstances in which they do not present concrete, specific, and imminent threats to life or physical safety, and where there are means other than lethal force that could reasonably be employed to neutralize any such threat,” violates his son’s Fourth Amendment right to be free from unreasonable seizures and his son’s Fifth Amendment right not to be deprived of life without due process of law. Furthermore, he claims that the United States’ refusal to disclose the criteria by which it selects U.S. citizens like his son for targeted killing independently violates the “notice requirement” of the Fifth Amendment Due Process Clause. Lastly, plaintiff brings a statutory claim under the Alien Tort Statute (ATS) alleging that the United States’ policy of targeted killings violates treaty and customary international law [p. 8-9].

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Defendants passed a motion to dismiss Plaintiff’s complaint on five grounds [p. 9]:

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1. Standing
2. Political question
3. “Equitable discretion”
4. Lack of a cause of action under the ATS;
5. The state secrets privilege.

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Plaintiff lacks legal standing to sue

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Stranding on jurisdictional issues, the case never entertained the merits. The court concluded that plaintiff lacked legal standing. Plaintiff sued as his son’s “next friend” but the court determined that he did not meet the two prerequisites for “next friend standing”, being a) the putative “‘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” and b) the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate [p. 16]. In opposing defendants’ motion to dismiss, Plaintiff argued -for the first time- that he also has third-party standing to raise his son’s constitutional claims [p. 28]. But the court found that plaintiff did not meet the requirements for “third party standing” either since his interests do not align with those of his son. In addition, the court found that plaintiff also failed the “relationship” test, because none of the rights that he claimed are infringed by the alleged targeted killing of his son constitute substantive protections of the father-adult son relationship, and the alleged targeted killing of plaintiff’s adult son is not “designed to interfere with” the father-adult son relationship”[p. 40-41]. In sum, all three of plaintiff’s constitutional claims were dismissed due to lack of standing.

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Court also dismissed statutory claim under Alien Tort Statute

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Plaintiff brings his fourth claim under the Alien Tort Statute (“ATS”), alleging that the United States’ policy of targeted killings violates treaty and customary international law. The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” But in order for his ATS claim to survive, plaintiff must also show that (1) an alien suffers a legally cognizable tort – which rises to the level of a “customary international law norm” – when his U.S. citizen son is threatened with a future extrajudicial killing and (2) the United States has waived sovereign immunity for that type of claim. But the court holds the view that there is no basis for the assertion that the threat of a future state-sponsored extrajudicial killing -as opposed to the commission of a past state-sponsored extrajudicial killing- violates a norm under customary law [p.52]. Also the court determines that plaintiff’s suit de facto is a suit against the United States itself since he brings his ATS claim against the President, the Secretary of Defence and the Director of the CIA in their official capacities. In absence of a waiver, the court concludes that sovereign immunity blocks judicial review and thus finds that this claim fails [p. 59].

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The Political Question Doctrine

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The political question doctrine is essentially a function of the separation of powers and excludes from judicial review claims that raise non-judiciable political questions in the area of national security, military matters and foreign relations [p. 67]. Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial review of this case [p. 80].

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The Military and State Secrets Privilege

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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,” the court determined that it would not reach defendants’ invocation of the state secrets privilege [p. 83].

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Nevertheless, this did not withhold the Court from noting that important questions remain: “Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum” [p. 4].

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Anwar Al-Aulaqi was killed by a drone strike in Yemen on 30 September 2011.