As covered in a recent New
York Times article, a lawsuit filed by Nasser Al-Awlaki, father of deceased
United States citizen and alleged Al Qaeda organizer Anwar Al-Awlaki, has
brought the matter back into the United States court system. Nasser is filing
suit not only on behalf of Anwar, but also on behalf of his 16 year old son,
Abdulrahman, who was killed in a second drone strike less then a month after
Anwar. Also joined on the suit is Sarah Kahn, whose son Samir was an apparent
bystander in the strike that killed Anwar Al-Awlaki. The lawsuit names four
federal officials, including Secretary of Defense Leon Panetta and CIA Director
David Patreus – while notably not naming President Barack Obama.
Let’s start with a brief recap of the facts: Anwar Al-Awlaki
was a dual citizen of the U.S. and Yemen who was killed in a Yemen drone strike
on Sept. 30, 2011. He was born in New Mexico in 1971, and spent a great deal of
his life in the United States, only moving to Yemen in 2004. Starting in
mid-2010, agencies of the United States government officially recognized
Al-Awlaki as a Specifically Designated Global Terrorist (SDGT), acting on
behalf of Al Qaeda in the Arabian Peninsula. He allegedly assisted with
training camps in Yemen and instructed both (1) the failed Christmas day ’09
airplane bomber, and (2) Nidal Malik Hasan, who allegedly killed 13 people in a
late ’09 shooting at Fort Hood. He allegedly praised these actions, encouraged
others to follow suit, and called for jihad against the West.
In 2010, following several leaks of intelligence revealing
that Al-Awlaki was classified on some form of a “kill list” by the United
States government, his father filed suit, alleging tortious violations and
violations of Constitutional rights. His hope was to enjoin the United States
government from killing his son without some form of judicial process or
notice. This case was dismissed on numerous grounds, all of which are discussed
below, before any information regarding governmental proceedings was released
or the key constitutional issues were even touched on. Before his death in the
2011 drone strike, Al-Awlaki was never formally indicted, with evidence
presented to the American public or a grand jury. Formal extradition requests
were never sent to Yemen.
As the Times article mentions, there is allegedly a secret
Justice Department memo that concluded it would be lawful to target Anwar
Al-Awlaki if capturing him was infeasible. The Times and the ACLU have filed
suit for this memo under the Freedom of Information Act (FOIA), so far to no
avail.
Let me begin by saying that President Obama has a list of
admirable achievements in the realm of foreign policy. While developments have
come too slowly for the satisfaction of some, the President has us in a
position where an end to our wars is in sight, and future defense spending cuts
may actually be attainable. After practically being welcomed into office with a
Nobel Peace Prize, Obama has reconciled his campaign’s foreign policy ideals
with politically prudent pragmatism, and now has a record that serves as one of
the strongest selling points of his 2012 campaign.
That said, the handling of this case is an area where I find
the President’s position to be somewhat dangerous. The killing of American
citizens in drone strikes without notice or judicial accountability of any kind
presents a Constitutional mess, calling into question issues of due process and
executive power. This litigation at least leaves open the possibility that
these decisions won’t go judicially untouched or publicly forgotten.
The FOIA litigation against the Department of Justice is the
first chance to speak truth to power in this matter. Granting media and public
access to this information under the Freedom of Information Act would instantly
peel away a layer of secrecy and, at the very least, expose the legal reasoning
of the DoJ in this situation. This would
increase the base of information which voters can use when deciding whether or
not to hold elected officials accountable for these decisions. Allowing the
public expect legal justification when similar situations arise in the future
would also set a valuable precedent. I’d be willing to bet that even the
majority of those who trust President Obama to make Constitutionally accurate
decisions behind closed doors wouldn’t extend the same trust to, say, President
Bachmann.
As for this most recent round of litigation, it is an
unfortunate reality that the plaintiffs face many seemingly insurmountable
barriers to success. Many of these barriers are the following issues, the same
ones which caused Nasser Al-Awlaki to fall short in his initial suit in 2010:
I. Standing:
Federal District Court Judge John Bates considered two types
of standing that could allow Nasser Al-Awlaki to bring a suit on behalf of his
son: “next friend” standing, and “third party” standing.
Next friend standing has two stern requirements: (1) that
the party can provide an adequate explanation as to why the third party cannot
appear in court on their own behalf, and (2) that the next friend is truly
dedicated to acting in the best interests of the third party. Bates was
apparently not convinced that Al-Awlaki satisfied either of these standards. He
argued that Anwar was not entirely unable to appear, regardless of the fact
that he was said to be in hiding after hearing that he was on a government list
permitting the United States military to kill him. His unwillingness to appear
apparently also signified that he and his father had less than parallel
interests, and the second requirement could not be met.
Third party standing requires that there must be an actual
injury to the litigating party, they must be substantially close to the third
party, and the third party must have some hindrance to appearing in their own
defense. Bates was again unsatisfied
that there was any actual injury to Nasser – even the possibility of living
without a son – or enough of a hindrance to Anwar appearing on his own behalf.
II. Sovereign
Immunity
The court also barred the consideration of due process from
consideration on the basis of sovereign immunity. Bates ruled that the
President could not be sued because of sovereign immunity, and that the
agencies named in the suit were acting in a realm in which they had discretion
that could not be reviewed by the courts. Bates said that it would be
“extraordinary for this Court to order declaratory and injunctive relief
against the President's top military and intelligence advisors, with respect to
military action abroad that the President himself is alleged to have
authorized”. (Pg. 63).
III. Political
Questions
The court also found that the often-criticized “political
question” doctrine was sufficient grounds for dismissal. As the court quotes,
the political question doctrine involves the consideration of 6 vague factors:
“[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court's undertaking independent
resolution without expressing lack of respect due coordinate branches of
government; or [5] an unusual need for unquestioning adherence to a political
decision already made; or [6] the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.”
Judge Bates, in his analysis, concluded that many of these
factors were satisfied. Apparently, the constitutional commission of military
powers to other agencies of government makes matters such as the drone-killing
of American citizens political questions beyond the reach of the judiciary. Judge
Bates agreed that there is not a readily available judicial standard with which
to resolve this question, and that doing so has the potential to interfere with
another branch of government.
These defenses, when successfully used in 2010, suggested a
bleak truth: that there may be little to no check on executive power when it
comes to the kill list. The kill list was drafted secretly, and never revealed
to those whose names were allegedly on the list. The limits on standing force
potential kill list targets to come forward to contest a classification that
they (1) cannot see, and (2) aren’t even sure exists. Should one not do so,
they may forfeit their right to any process at all under the logic of Judge
Bates. Also, the top officials that make these decisions and are the final
arbiters of these decisions are sheltered from accountability under the
doctrine of sovereign immunity. Even if these suits fall within an exception to
sovereign immunity, there is a good chance the decision will be labeled a “political
question”. This classification basically cements unbridled government power,
thwarting the purpose of a federal Constitution. On top of all that, the U.S.
government has not even taken official responsibility for the strike yet, even
recently suggesting that it could have come from a Yemen drone. I’ve
watched enough Sopranos episodes to understand this maneuver. In the mafia,
when a “made” man is killed, the killer can never officially take ownership of
their kill without subjecting themselves to the same fate under the rules. What
usually happens is that the killer goes to the funeral, hugs the mother of the
deceased, and gives smiling nods to their friends, with no means of being held
accountable. Sound familiar?
These same barriers to justice will no doubt rear their ugly
heads in the next round of litigation pursued by Nasser Al-Awlaki. However,
there are also positives - Constitutional protections in the realm of foreign
policy are not completely non-existent. The 2000’s series of cases regarding
the judicial process required for Guantanamo Bay prisoners represents important
due process protections for alleged terrorists. Also, one can only hope that
the increased public, and even mainstream,
outcry over the executive’s actions in the matter of Al-Awlaki, may set the
stage for a more aggressive consideration of the issues.
The Due Process clause of the 4th Amendment of the
Constitution should require the killing of American citizens in unmanned drone
strikes to be an issue for which actors are held accountable to a neutral fact finder.
The kind of “due process” that Eric Holder describes in his explanation
at Northwestern University, in which no accountability exists at any level of
decision making, may as well be no process at all. Holder’s “due process” would
be something that we can’t see, change, or challenge – we are forced only to
trust that it’s there. The placement of United States citizens on a “kill list”
should not take place entirely behind closed doors, unbeknownst even to those
placed on the list. Alleged terroristic acts used as justification by the
United States government should have to be proven as fact before they may be
treated as such.
Is it easy to see why unabridged drone-striking power may be
attractive to a commander in chief? Sure. It gets the job done. It can be
accomplished without bringing United States soldiers into dangerous
territories. There is a time advantage to be recognized, and a tactical one as
well. However, this alone does not justify the current protocol as long as the
Constitution has teeth. Sure, these will be difficult decisions, and sure, they
bring with them the potential for conflict between branches of government. But
the idea that some decisions are too important to come before the Constitution
has the value of the Constitution exactly backwards.
