The Hole in the Heart of Judge Bates’ Al-Aulaqi Decision

by Kevin Jon Heller

I hope to have more to say in the next few days about Judge Bates’ completely predictable decision to dismiss the ACLU/CCR lawsuit.  I just want to flag here what is the most obvious problem with it.  Judge Bates claims — clearly trying to insulate himself from criticism — that

Contrary to plaintiff’s assertion, in holding that the political question doctrine bars plaintiff’s claims, this Court does not hold that the Executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” See Mot. Hr’g Tr. 118:1-2. Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of AQAP, see Clapper Decl. ¶ 15, presents such a threat to national security that the United States may authorize the use of lethal force against him.

The reason that the Executive does not possess such “unreviewable authority,” according to Judge Bates, is that Al-Aulaqi cannot be assassinated by the Obama administration if he turns himself in first:

But while Anwar Al-Aulaqi may have chosen to “hide” from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. Defendants have made clear — and indeed, both international and domestic law would require — that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be “prohibit[ed] [from] using lethal force or other violence against him in such circumstances.”

This argument holds for Al-Aulaqi, who is aware that he is on the Obama administration’s kill list.  But as I have pointed out before, there are three other Americans on that list.  Nothing in Judge Bates’ opinion requires the government to inform them — or Americans added to the list in the future — of their status before they are actually assassinated.  Those Americans, therefore, do not have the option of surrendering themselves in order to avoid harm.  Indeed, Judge Bates’ opinion provides the government with a powerful incentive not to inform them that they have been included on the kill list, because that will keep open the assassination option indefinitely.

With the exception of Al-Aulaqi, in short, the ACLU and CCR are exactly right: contrary to his protestations, Judge Bates has given Obama precisely the “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.”  All Obama has to do is keep his mouth shut.

http://opiniojuris.org/2010/12/09/the-hole-in-the-heart-of-judge-bates-al-aulaqi-decision/

3 Responses

  1. Change you can believe in!
    Best,
    Ben

  2. Kevin,

    I think this post might be slightly misleading.  I share your concern about the way the court discussed and applied the political questions doctrine (although if future cases limit this one to its facts, then less so).  However, I did not read the opinion as relating the political questions determination to al-Aulaqi’s ability to surrender.  My read is that the latter discussion went only to the next friend standing issue, not the political questions doctrine.  Your discussion and ultimate point indicate the two are related.   I think the court’s discussion of the political questions doctrine stands on its own.

    That said, though, the judge’s discussion of the political questions doctrine is potentially sufficient to create the condition you assert.  I would further submit that the political questions issue should not have been reached at all.  Once it was determined that the plaintiff lacked standing on all claims, no further discussion was necessary or advisable.  Why examine the nature of the subject matter of the suit at all if you have already determined that the party before you is not the proper one to bring the claims?  (The obvious answer is to provide alternate grounds for affirming the dismissal on appeal, but that should not be sufficient to pronounce unnecessarily on a matter of such sweeping importance.) 

    I have my own thoughts on the decision and some seemingly erroneous commentary that has already been offered ‘elsewhere’ (read “Lawfare”) by ‘others’ (read “Goldsmith”).  If I have time in the midst of a mountain of end-of-term exams and papers, I might offer some of them up to OJ.

  3. John,

    Thanks for the thoughts — and I certainly agree that Judge Bates should have stopped with standing.  But I still think that the two sections, standing and political question, are related.  Nothing in the political-question section in any way contradicts the plaintiffs’ claim that rejecting the lawsuit means the Executive has unreviewable authority to kill anyone it wants; the section simply says that courts can’t review targeting decisions.  Judge Bates was obviously uncomfortable with that, which is why he linked back to the standing argument — contending that the plaintiffs’ claim was not true, despite the political-question holding, because the targeted person can avoid lethal force by turning himself in.  That’s why, I think, Judge Bates says in the political-question section — very precisely — that he lacked the capacity to review the targetability of “a specific individual in hiding overseas.”

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