25 Sep Obama Administration: Keep Your Hands off Our Armed Conflict!
The Obama administration recently filed its motion to dismiss the ACLU/CCR lawsuit that seeks to enjoin the government from using lethal force against Anwar al-Aulaqi. Predictably, the motion relies on a potpourri of reasons why no court should ever review the lawfulness of Obama’s determination that an American citizen abroad should be summarily executed, including everyone’s favorite “state secrets” privilege. I’ll leave analysis of those reasons to others. I just wanted to flag here the following truly remarkable piece of legal reasoning in the motion:
The United States has further determined that AQAP is an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court recognized in Hamdan v. Rumsfeld, 548 U.S. 557, 628-31 (2006).
Plaintiff contends that “armed conflict” does not extend outside of Iraq and Afghanistan. But if (as the Complaint appears to argue) the Court must concur in that judgment in order for plaintiff to prevail, then plaintiff’s claims are non-justiciable, because whether and in what circumstances the U.S. armed conflict with al-Qaeda and associated forces may extend—now or at some later point—is itself a question that involves predicate foreign policy and national security determinations beyond the purview of the Court.
Recall that, in Hamdan, the Supreme Court rejected the Bush administration’s claim that the Geneva Conventions did not apply to detainees at Guantanamo because the “conflict” between the U.S. and al-Qaeda was neither an international (IAC) nor a non-international armed conflict (NIAC). The Court held that, at a minimum, the “conflict” was a non-international armed conflict to which Common Article 3 applied.
The Obama administration, as the first quote indicates, now accepts the Supreme Court’s conclusion that the “conflict” between the U.S. and al-Qaeda is a NIAC. Yet when the ACLU/CCR challenges the geographic scope of that NIAC, the Obama administration argues, as the second quote indicates, that the issue is “non-justiciable.” Differently put: according to the Obama administration, a challenge to a judicial determination of the scope of an armed conflict is non-justiciable.
Note, finally, that this appears to be yet another area in which the Obama administration is advancing even more radical claims than the Bush administration. Readers should correct me if I’m wrong, but I do not believe the Bush administration ever claimed in Hamdan that its determination the U.S. was not engaged in either an IAC or a NIAC with al-Qaeda — the basis of its claim that the Geneva Conventions did not apply — was “non-justiciable.” By the Obama administration’s logic, however, it should have.