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