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Redress for Placement on Government Kill List? Justiciability, Separation of Powers, and International Law in Al Aulaqi v. Obama

Redress for Placement on Government Kill List? Justiciability, Separation of Powers, and International Law in Al Aulaqi v. Obama

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Published by: impunitywatch on Apr 26, 2012
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1
Redress for Placement on Government Kill List?Justiciability, Separation of Powers, and International Law in Al Aulaqi v. ObamaBy Warren Popp
*
 
How is it that judicial approval is required when the United States decides totarget a U.S. citizen overseas for electronic surveillance, but that . . . judicialscrutiny is prohibited when the United States decides to target a U.S. citizenoverseas for death? Can a U.S. citizen -- himself or through another -- use theU.S. judicial system to vindicate his constitutional rights, while simultaneouslyevading U.S. law enforcement authorities, calling for "jihad against the West,"and engaging in operational planning for an organization that has already carriedout numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the courts . . . make real-time assessments of the nature and severity of alleged threats to national security, determine theimminence of those threats, weigh the benefits and costs of possible diplomaticand military responses, and ultimately decide whether, and under whatcircumstances, the use of military force against such threats is justified? Whenwould it ever make sense for the United States to disclose in advance to the"target" of contemplated military action the precise standards under which it willtake that military action? And how does the evolving [al Qaeda in the ArabianPeninsula (AQAP)] relate to core al Qaeda for purposes of assessing the legalityof targeting AQAP (or its principals) under the September 18, 2001 Authorizationfor the Use of Military Force?
1
 This long list of complex legal questions, which “present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure,” wasraised for adjudication in
 Al-Aulaqi v. Obama
, a case brought before the federal district court inWashington, DC.
2
In
 Al-Aulaqi
, the plaintiff was challenging the executive branch’s alleged*
 Impunity Watch
Editor-in-Chief, 2011-2012; J.D. Candidate, Syracuse University College of Law, 2012; M.A. International Relations Candidate, Maxwell School for Citizenship and PublicAffairs, 2012; B.A. Political Science and Economics, University of Missouri—St. Louis, 2009.My sincerest gratitude to my wife, Megan, and to my parents, siblings, and family-in-law for their unconditional love and support through my law and graduate school career. I would alsolike to thank the staff of 
 Impunity Watch
for their hard work throughout the production process.
1
727 F. Supp. 2d 1, 8-9 (D.D.C. 2010).
2
 
 Id.
at 8.
 
2illegal placement of a U.S. citizen on the CIA and the Joint Special Operations Command(JSOC) “capture or kill” list
3
(“kill list”) for alleged terrorist activities overseas.
4
 Although the issues raised in
 Al-Aulaqi
were, and still are, of utmost importance for the protection of individual liberties and counterterrorism policy in general, the determination of these fundamental constitutional issues was cast aside for another day, as Federal District CourtJudge John D. Bates dismissed the case without ruling on its merits. In his opinion, Judge Batesrecognized the gravity of his decision not to allow the case to go to trial, stating, “[t]o be sure,this Court recognizes the somewhat unsettling nature of its conclusion—that there arecircumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is‘constitutionally committed to the political branches’ and judicially unreviewable. But this casesquarely presents such a circumstance.”
5
 This article approaches the “unsettling nature of [the court’s] conclusion” as part of a broader problem of impunity, arguing that if Judge Bates’s decision, along with other applicablecases, properly articulates U.S. law and procedure as it currently stands, then current justiciability doctrine must be reformed in order to allow fundamental questions of U.S.
3
It is unclear whether there is an actual “list” per se.
See
Tara Mckelvey,
 Inside the Killing  Machine
, N
EWSWEEK 
, Feb. 13, 2011, http://www.newsweek.com/2011/02/13/inside-the-killing-machine.html.
4
Al-Aulaqi’s placement on such a list was first reported in the Washington Post in January 27,2010 and was subsequently confirmed by other news sources, all of which cited anonymous U.S.government officials. Dana Priest,
U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes,
W
ASHINGTON
P
OST
, Jan. 27, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/01/26/AR2010012604239.html; Greg Miller,
 Muslim Cleric Aulaqi is 1st U.S. Citizen on List of Those CIA is Allowed to Kill 
, W
ASHINGTON
P
OST
, April 7, 2010,http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040604121.html;Dina Temple-Raston,
U.S. Turns Up Heat On Internet Imam Awlaki
, N
ATIONAL
P
UBLIC
ADIO
,July 29, 2010, http://www.npr.org/templates/story/story.php?storyId=128831726.
5
 
 Al-Aulaqi
, 727 F. Supp. 2d at 51.
 
3constitutional law and international law to be decided by the courts, and to prevent possibleviolations of international law caused by the impunity itself.Of course, the
 Al-Aulaqi
case is far from the only instance where a plaintiff raised timelyand fundamental constitutional issues, but was unable to have his day in court due to issues of  justiciability.
6
Moreover, while beyond the scope of this article, there are also similar issuesraised by the courts’ use of the state’s secrets privilege
7
and heightened pleadings standards.
8
 The purpose of this article is not to attempt to make a determination of whether the alleged
6
 
See
,
e.g.
, ACLU v. NSA, 493 F.3d 644, 652 n. 5 (6th Cir. 2007) (“this court is presented with acascade of serious questions. Has the NSA violated the United States Constitution—the FirstAmendment, the Fourth Amendment, or the Separation of Powers Doctrine? Or, has the NSAviolated federal statute . . .? If the NSA has violated a federal statute, is that statute constitutionalwhen applied to the NSA in this manner?”); People's Mojahedin Org. of Iran v. U.S. Dep’t. of State, 182 F.3d 17, 23 (D.C. Cir. 1999) (quoting Designation of Foreign Terrorist Organizations,8 U.S.C. § 1189) (political question bars appellate court from reviewing Secretary of State’sdetermination that “the terrorist activity of the organization threatens the security of UnitedStates nationals or the national security of the United States,” leaving the court to uphold theSecretary of State’s determination without any “judgment whatsoever regarding whether thematerial before the Secretary is or is not true”); Idris v. Obama, 667 F. Supp. 2d 25, 29 (D.D.C.2009) (denied next friend standing because ‘next friend’ “never met with petitioner since hisconfinement, counsel cannot be certain that [the 'next friend'] represents petitioner's bestinterests").
7
 
See
,
e.g.
, Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (foreignnational’s claim under Alien Torts Statute against company that allegedly participated in U.S.government extraordinary rendition program barred during pleading stage by the government,which intervened in case, on the grounds of state secrets privilege);
See also
Andrew Kingman,
State Secrets are a Privilege, Not a Right: Can Foreign Victims of Extraordinary Rendition and Torture Overcome the State Secrets Privilege Using the Alien Tort Statute?
16 S
UFFOLK 
J. T
RIAL
& A
PP
. A
DVOC
. 118, 121 (2011) (citations omitted) (“The recent ruling by the Supreme Court of the United States denying certiorari in
 Arar v. Ashcroft 
in addition to the Ninth Circuit's decisionen banc in
 Mohamed v. Jeppesen Dataplan, Inc.
have, as of this moment, denied an entire classharmed by the U.S. government from pursuing a judicial remedy.”).
8
 
See
,
e.g.
, Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (torture and extraordinary renditionclaims dismissed for failure to state a claim); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (use of 
Twombly
heightened pleading standard led to dismissal for failure to state a claim);
 see also
 Edward Brunet,
The Substantive Origins of “Plausible Pleadings”: An Introduction to theSymposium on Ashcroft v. Iqbal,
14 L
EWIS
& C
LARK 
L. R 
EV
. 1 (2010).

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