Judge John Bates just handed down his ruling dismissing the ACLU/CCR suit challenging the government's targeted killing program (as Marcy Wheeler predicted) stating that radical cleric and U.S. citizen Anwar al-Awlaki's father, Nasser al-Awlaki, did not have standing to sue, in part because the younger al-Awlaki could avail himself of the U.S. justice system if he so chose. I'll just go through the questions raised briefly, and how Bates responded to them.
"Next Friend" Standing: Bates' argument here is that al-Awlaki's father lacks standing as a "next friend" because there's no reason to believe that al-Awlaki can't avail himself of the U.S. court system absent his father's intervention. As Bates writes, "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," which the government asserts would make it illegal to use lethal force against him. To the ACLU/CCR's claims that al-Awlaki could be detained indefinitely as an "enemy combatant," Bates posits that detainees have access to U.S. courts. He also dryly notes that the back page of the AQAP magazine Inspire contains several e-mail addresses where al-Awlaki can be contacted. You know, for pitches.
"Third Party" Standing: Bates' response here is similar -- al-Awlaki could avail himself of the courts if he so chose, and he is choosing not to. Bates also points out that it would raise serious problems to establish a precedent in which an adult father can make legal claims on behalf of his adult child under circumstances in which the adult child is capable of acting in their own interests. Bates argues that al-Awlaki's interests as stated conflict with those of his father, based on his public statements that U.S. law has no jurisdiction of Muslims.
Article III Standing: Bates' argument here strikes me as the least persuasive of his responses on matters of standing, since it's basically an assertion that the killing of the elder al-Awlaki's son is not a "constitutional injury in fact," because "emotional harm -- in and of itself -- is not sufficient to satisfy Article III's injury in fact requirement." He cites an FBI brutality case that was dismissed "on the ground that the alleged injuries to the son did not impact the father "in a personal and individual way." Bates may be on firm legal ground there, but I still found that kind of shocking.
Alien Tort Statute: No need to linger on this -- Bates basically said the other claims of standing were in conflict with the plaintiffs' other arguments.
Political question: Bates argues that the case warrants dismissal on political question grounds, because "there are no judicially manageable standards by which courts can endeavor to assess the president's interpretation of military intelligence and his resulting decision -- based on that intelligence -- whether to use military force against a terrorist target overseas." Bates draws a distinction between judges assessing habeas claims based on intelligence information after the fact, and the propriety of a judge doing so in advance of what he characterizes as a military decision.
When it comes to the central question of the ACLU/CCR lawsuit, Bates writes:
Contrary to plaintiff's assertion, in holding that the political question doctrine barsplaintiff'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." 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, presents such a threat to national security that the United States may authorize the use of lethal force against him.
So it's not that "the Executive possesses unreviewable authority to order the assassination of any American citizen whom he labels an enemy of the state"; it's just that the courts can't review it.
State Secrets: In response to sustained pleading on the part of the Obama administration, Bates obliged the government by not dismissing this case based on the state-secrets doctrine. I'm not sure, given the context of this case, how that bolsters the idea that the Bush era was characterized by an unchecked executive while the Obama administration is totally different, but OK.
Bates is a very smart judge, and the ruling is really much more than just a dismissal of the ACLU/CCR's case. Dealing with each issue, Bates takes great care to cite al-Awlaki's own writings and public statements to show that he's uninterested in asserting his constitutional rights. But these statements, nominally meant to provide context to his responses, seem to double as an implicit vindication of the government's perspective on the danger al-Awlaki poses. I don't know if that's intentional. But in stating that al-Awlaki is not incapable of stating his desires publicly, he cites his calls for "jihad against the West," and exhortations that Muslims meet "American aggression" not with "pigeons and olive branches" but "with bullets and bombs."
The element most fatal to the ACLU/CCR's case in Bates' ruling, as in the public sphere, are al-Awlaki's own statements. Al-Awlaki's rhetorical indictments of the U.S. justice system basically made it difficult for his father to sue on his behalf, because there was no way to credibly establish that the younger al-Awlaki wanted him to, and because the legal standards for suits filed by third parties are so high. Still, I doubt this will be the last we'll hear of this case.
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