Yesterday, Judge John Bates heard oral arguments in the ACLU/CCR lawsuit challenging the Obama administration's targeted killing program. Bates is a George W. Bush appointee, but he's one of Bush's more nonideological appointments -- it was Bates who ruled last year that detainees at Bagram who had been captured in third countries had a right to challenge their detention in federal court, a ruling that was later reversed.
The arguments concerned whether or not the father of radical cleric Anwar al-Awlaki, Nasser al-Awlaki, has standing to sue the government to prevent the government from killing his son except as a last resort. This point is key, and I think it's been lost in the noise -- the ACLU/CCR lawsuit doesn't seek to prevent al-Awlaki's killing as a last resort in the event that he poses an imminent danger to Americans, merely ensure that he only be killed under those circumstances. It is also trying to force the government to disclose the criteria under which American citizens are added to its reported "kill list." The government, responding to this claim, argues that the ACLU/CCR lawsuit relies on speculation that those criteria aren't actually being followed.
At first glance, the question may seem silly because the harm done to the elder al-Awlaki from the loss of his son is obvious -- but the actual legal criteria for determining standing make the matter far from a foregone conclusion. The ACLU/CCR contends they have standing under two criteria, "Next Friend" and "Third Party." Meeting the standard under "Next Friend" requires the ACLU/CCR to show that the younger al-Awlaki would want to sue but can't, while "Third Party" demands that the elder al-Awlaki show that he would "suffer a concrete, redressable injury” from the government's actions. Although Ben Wittes, who was also there, would disagree with me, I think Bates was more sympathetic to "Next Friend" than he was to the "Third Party" question, as he warned the latter could lead to a flood of lawsuits based on government action, and an "unprincipled landscape" in which judges arbitrarily decide standing based on the plaintiffs they're sympathetic to.
The Justice Department attorney, Douglas Letter, repeatedly invoked the idea of the president having to call a judge in the middle of the night to get approval to stop an imminent threat, and characterized the decision as a military one over which judges shouldn't have any say. Of course, the ACLU/CCR lawsuit is contesting the idea that this is a military decision, arguing that the AUMF doesn't cover Yemen and that the U.S. is not at war there. There were also arguments over whether the ACLU/CCR had a claim under the Alien Tort Statute, which Bates seemed to dismiss out of hand, and whether the matter was a "political question" that should be decided by Congress. Letter explicitly asked Bates to dismiss the lawsuit on state-secrets grounds only as a last resort.
There was an exchange at the end of arguments that, beyond the legalese, really crystallized what this case is about. Both sides had offered their final rebuttals, but ACLU attorney Jameel Jaffer stood again and stated that the lawsuit was really about whether the president possesses an "unreviewable authority to order the assassination of an American citizen." It moved Bates to ask Letter if he wanted to respond.
Letter rose and called Jaffer's statement "absurd" and "ridiculous" but what followed was less convincing. He pointed out that the AUMF limits the president to overseas operations the matter in question was an overseas operation and that it fell under the scope of the AUMF, that al-Awlaki was part of an "officially designated" terrorist group who was "attempting to carry out operations" against Americans.The fact that al-Awlaki had just released a new video calling for Muslims to kill Americans probably weighed on reporters in the courtroom.
Only the first of Letter's statements is beyond dispute. The other two concern unproven -- but not necessarily inaccurate -- assumptions of fact that go to the heart of the case: whether or not al-Awlaki is actually an "operational leader" of al-Qaeda in the Arabian Peninsula or simply a vicious hatemonger who justifies and exhorts terrorism against Americans. The government is actually saying that its unilateral determination that the latter two assumptions are accurate that allow the government to deprive al-Awlaki of life without due process.
Still, in my view the ACLU/CCR has an uphill battle. Their problem is that they're essentially facing a legal landscape that gives an extraordinary amount of deference to the executive branch in these matters. Free from legal precedent, and unshackled from a deeply unsympathetic plaintiff, their argument has the most power. In court, they have to contend with an endless number of small prior legal steps toward an imperial executive that would be invisible to a layperson, were it not for the conclusion the government is asking Bates to reach: Having labeled the individual in question a terrorist, the president can order the death of an American citizen abroad.
Of course, they've beaten the odds before.
UPDATE: Marcy Wheeler makes an important point in response to my post and whether the AUMF only covers overseas matters:
Consider: the government has not yet withdrawn the White Paper retroactively authorizing the illegal wiretap program under the AUMF. Thus, DOJ still supports claims that the AUMF authorized the President–any President–to conduct operations (in that case, military operations in the form of NSA wiretapping) in the United States.
This exchange was occurring at the very end of the hearing, so it's possible I misheard Letter's argument or paraphrased it badly, but in my notes I wrote down the fact that it was overseas as part of the reason it came under the AUMF. Most likely he was making this claim as part of the government's larger argument that this is a military/intelligence matter, not limiting the scope of the AUMF to overseas operations, since as Marcy points out this would contradict other positions the government has taken. I've edited the post so there's no confusion.
