Nasser Al-Aulaqi, on his own behalf and as next friend of Anwar Al-Aulaqi, Plaintiff, v. Barack H. Obama, in his official capacity as President of the United States; Robert M. Gates, in his official capacity as Secretary of Defense; and Leon E. Panetta, in his official capacity as Director of the Central Intelligence Agency, Defendants.
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||United States District Court for the District of Columbia, United States
||7 December 2010
- Nasser Al-Aulaqi, on his own behalf and as next friend of Anwar Al-Aulaqi
- Barack H. Obama, in his official capacity as President of the United States
- Robert M. Gates, in his official capacity as Secretary of Defense
- Leon E. Panetta, in his official capacity as Director of the Central Intelligence Agency
||Targeted killing, Terrorism
||Law of armed conflict; armed drone; drone strike; means and methods of warfare; procedural law; targeted killing; use of force
|Other countries involved
The Al-Aulaqi case is significant as it marks in all probability the first time that an American citizen has been killed by U.S. forces outside the borders of the U.S., without any trial, indictment or due process. The case revolves around Anwar Al-Aulaqi, an American-born cleric with dual U.S.-Yemeni citizenship who was a member of al Qaeda in the Arabian Peninsula (AQAP) and had gone into hiding in Yemen, from where he regularly published videos propagating the jihad. The U.S. Treasury Department had allegedly designated him for targeted killing. Therefore, his father, Nasser Al-Aulaqi, filed a complaint claiming that the President, the Secretary of Defense, and the Director of the CIA unlawfully authorised the targeted killing, and seeking an injunction prohibiting them from intentionally killing his son, except in case he did present a concrete, specific, and imminent threat to life or physical safety, and when there are no means other than lethal force that could reasonably be employed to neutralise the threat. The American Civil Liberties Union and the Center for Constitutional Rights intervened with a memorandum supporting Al-Aulaqi senior’s complaint.
The Columbia District Court found that plaintiff Al-Aulaqi, the father, had neither legal standing in court for his claims, nor that was the claim justiciable under the Alien Tort Statute. And if this was not enough, the Court also ruled that the political question doctrine barred it from adjudicating the case. On 7 December 2010, Nasser Al-Aulaqi’s complaint was dismissed on those grounds, while the defendants’ motion to dismiss was granted.
Anwar Al-Aulaqi was killed by a drone strike in Yemen on 30 September 2011.
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On 30 August 2010, Nasser Al-Aulaqi (also spelled “Al-Awlaki”, “Al-Awlaqi” or “Al-Aulaki”) filed a complaint for declaratory and injunctive relief, claiming that the President, the Secretary of Defense, and the Director of the CIA have unlawfully authorised the targeted killing of his son Anwar Al-Aulaqi, and seeking an injunction prohibiting defendants from intentionally killing Anwar Al-Aulaqi "unless he presents a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat" (Complaint, prayer for relief, under C). On the same day, the American Civil Liberties Union (ACLU) and Center for Constitutional Rights (CCR) issued a memorandum in support of Al-Aulaqi’s motion for a preliminary injunction. The defendants – Obama, Gates and Panetta – responded with a motion to dismiss on 24 September of that year. Subsequently, the ACLU and CCR jointly responded on 8 October with a reply memorandum in support of Al-Aulaqi’s motion and in opposition to the defendants’ motion to dismiss. Defendants reacted ten days later with a reply to plaintiff’s opposition to defendants’ motion to dismiss (MTD). The Columbia District Court issued its memorandum opinion on 7 December 2010.
On 3 August 2010, before Al-Aulaqi filed his complaint, the ACLU and CCR jointly filed a complaint against the U.S. Treasury Department and the Office of Foreign Assets Control (OFAC), challenging the refusal to grant a license allowing the groups to file a lawsuit concerning the U.S. government’s authority to carry out targeted killings.
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On 22 February 2011, after the Columbia District Court had issued the current opinion, ACLU and CCR released a statement that, in consultation with their client Nassar Al-Aulaqi, they would not be pursuing an appeal.
Anwar Al-Aulaqi was killed in Yemen by a drone strike on 30 September 2011.
In June 2014, a previously classified memorandum issued by the United States Department of Justice in 2010 was released, justifying al-Awlaki's death as a lawful act of war.
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Legally relevant facts
Anwar Al-Aulaqi was an American-born Muslim cleric with dual U.S.-Yemeni citizenship, and allegedly a member of al Qaeda in the Arabian Peninsula (AQAP). At the moment the underlying opinion was issued, he was believed to be in hiding in Yemen (p. 4). On 16 July 2010, he was designated by the U.S. Treasury Department’s Office of Foreign Assets Control as a Specially Designated Global Terrorist (SDGT), in light of evidence that he was ‘acting for or on behalf of al-Qa’ida in the Arabian Peninsula (AQAP)’ and ‘providing financial, material or technological support for, or other services to or in support of, acts of terrorism’ (inter alia, by recruiting and training persons to fight for the jihad, p. 5). He had never been charged with any crime though, but on numerous occasions he had declared that he had no intention of making himself available for criminal prosecution in a U.S. court anyway.
Al-Aulaqi’s father – the plaintiff – did not deny his son’s affiliation with AQAP or his designation as a SDGT, but he did contest his son’s unlawful inclusion on kill lists by the CIA and JSOC (Joint Special Operations Command, part of the U.S. army) without ‘charge, trial, or conviction’ (pp. 6-7). He brought four claims: the (alleged) U.S. policy of authorising the targeted killing of U.S. citizens outside of armed conflict, under circumstances in which they do not present concrete, specific, and imminent threats to life or physical safety, and where alternative, less “forceful” means exist to address and neutralise such threat violates (1) Anwar Al-Aulaqi's Fourth Amendment right to be free from unreasonable seizures and (2) his Fifth Amendment right not to be deprived of life without due process of law; (3) the U.S.’ refusal to disclose the criteria by which it selects U.S. citizens for targeted killing independently violates the notice requirement of the Fifth Amendment Due Process Clause; and, under the Alien Tort Statute ("ATS") (4) the U.S.' policy of targeted killings violates treaty and customary international law (complaint for relief, paras. 27-30). The U.S. had never denied nor confirmed allegations about the existence of any kill list or order (and the inclusion of plaintiff’s son therein), but argued in general that Anwar Al-Aulaqi, as a member of AQAP, had facilitated terrorist training camps, recruited people to join AQAP, and planned terrorist attacks against the U.S. More specifically, in the current case the defendants asked the Court to dismiss the complaint on five distinct grounds: (1) standing; (2) political question; (3) equitable discretion; (4) lack of a cause of action under the ATS; and (5) the state secrets privilege (p. 9). More specifically, the defendants asserted three main grounds for dismissal: (1) plaintiff fails to state an ATS claim upon which relief can be granted; (2) plaintiff lacks standing to bring his three constitutional claims; and (3) all of plaintiff's claims are political questions and therefore non-justiciable (p. 10).
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Core legal questions
At the outset, the Court noted that the underlying case gave rise to a multiplicity of important and controversial questions that are of great public interest, such as:
Why is judicial approval required for electronic surveillance of a U.S. citizen overseas, while judicial scrutiny is allegedly prohibited when the government decides to kill the person?
Can a U.S. citizen use the U.S. judicial system to vindicate his constitutional rights while at the same time evading law enforcement authorities, calling for a "jihad against the West," and engaging in operational planning for a terrorist organisation that has already carried out numerous terrorist attacks against the U.S.?
How can a court make real-time assessments of the nature, severity and imminence of alleged threats to national security, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified (p. 2)?
However, the Court emphasised that ‘no matter how interesting and no matter how important this case may be . . . we cannot address it unless we have jurisdiction’ (p. 3). Considering the grounds of defendants’ MTD, the questions to answer are:
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Specific legal rules and provisions
U.S. Constitution, 1788:
Alien Tort Claims Act of 1789 (Title 28 U.S. Code, Section 1350)
Geneva Convention (III), 1949:
- Article 3 - Conflicts not of an international character
Federal Rules of Civil Procedure, 1991, United States:
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- Rule 12(b)(1) - Lack of subject-matter jurisdiction
- Rule 12(b)(6) - Failure to state a claim upon which relief can be granted
Court's holding and analysis
The Court commenced by demarcating the standard of review of the case: Rule 12(b)(1) provides that the party seeking to invoke the jurisdiction of a federal court, thus the plaintiff in this case, bears the burden of establishing that the Court has jurisdiction to hear his claims. To survive a motion to dismiss under Rule 12(b)(6), however, a complaint only needs to contain ‘“a short and plain statement of the claim showing that the pleader is entitled to relief,” such that the defendant has “fair notice of what the...claim is and the grounds upon which it rests”’. ‘This amounts to a “two-pronged approach,” under which a court first identifies the factual allegations that are entitled to an assumption of truth and then determines “whether they plausibly give rise to an entitlement to relief”’ (pp. 10-12).
Regarding plaintiff’s first three (constitutional) claims, defendants argued that plaintiff had no legal standing since he had been unable to satisfy both third party and “next friend” standing requirements (p. 49). The Court agreed with this. Standing as next friend requires that this next friend provides an adequate explanation why the real party in interest cannot appear in court, and he must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate (p. 16). Plaintiff’s claim already fails at this point, because no adequate reason was given why his son had not lodged a claim himself; if it were true that he was under a death threat, he could still peacefully present himself at the U.S. embassy in Yemen, in which case both international and domestic law would prohibit the government from using force against him (p. 17). A mere prospect of future detention was also found insufficient to warrant a finding that Anwar Al-Aulaqi lacked access to the courts (p. 22). Furthermore, plaintiff also failed to show his true dedication to his son’s best interest: merely being a father is not enough, (recent) consultation about the exact legal course to take with the person in question is required (p. 23). The third party standing-claim was also dismissed. The test here is whether plaintiff (1) has himself suffered a concrete, redressable "injury in fact" and (2) has a close relation to the third party, and (3) whether there is hindrance to the third party's ability to protect his or her own interests (p. 28). The Court found that no third party standing could be established because plaintiff's relationship with his adult child is not entitled to any substantive protection under the U.S. Constitution (this is only different if the child is a minor or otherwise under the legal protection of the father), and because the alleged targeting of plaintiff's son is not designed to interfere with the father-adult son relationship (p. 49).
Considering the last claim – the ATS claim – the Court noted that in order for such a claim to survive a MTD, plaintiff must prove that (1) an alien suffers a legally cognisable tort (which rises to the level of a "customary international law norm"), and (2) that the U.S. has waived sovereign immunity for that type of claim (p. 50). With regard to the first point, the Court agreed with plaintiff that a customary international law norm against state-sponsored extrajudicial killings that had already happened exists as the basis for an ATS claim. However, plaintiff had failed to prove that such a customary norm also existed for a threat of a future extrajudicial killing. What further distinguished the case from regular cases is that the future extrajudicial killing is not directed at an alien but against a U.S. citizen. These two issues already prevent plaintiff from bringing the claim (p. 59). Regarding the second point, it was emphasised that an unequivocal waiver of immunity by the government for her conduct was required to succeed – which had not happened (p. 60).
Turning to the last ground brought by defendants to dismiss plaintiff’s claim, it was decided that the political question doctrine – which usually covers national security, military and foreign relations matters – bars the judicial resolution of the case (p. 67). Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff's claims, the Court found that the political question doctrine bars judicial resolution of this case (p. 80).
Since the plaintiff lacked standing and his claims were non-justiciable, the Court did not reach the invocation of the state secrets privilege by the defendants. Defendants’ MTD was granted (p. 83).
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R. Chesney, ‘Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force’, Yearbook of International Humanitarian Law, 2010, Vol. 13.
UN Human Rights Council, ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston’, A/HRC/14/24/Add.6, 28 May 2010.
L. Wexler, ‘Litigating the Long War on Terror: The Role of Al-Aulaqi v. Obama’, Loyola University Chicago International Law Review, Vol. 159, 2011.
R. P. Alford, ‘The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens’, Utah Law Review, Vol. 2011, No. 4.
B. R. Farley, ‘Targeting Anwar Al-Aulaqi: A Case Study in U.S. Drone Strikes and Targeted Killing’, National Security Law Brief, 2011, Vol. II(I).
A. U. Kannof, ‘Dueling Nationalities: Dual Citizenship, Dominant & Effective Nationality, and the Case of Anwar Al-Aulaqi’, Emory International Law Review, 2011, Vol. 25(3).
M. P. Ramsden, ‘Targeted Killings and International Human Rights Law: The Case of Anwar Al-Awlaki’, Journal of Conflict & Security Law, 2011, Vol. 16(2).
B. Van Baren, ‘President Obama’s Memo: The Legal Justification for the Targeted Killing of Anwar Al-Awlaki’, Loyola University Chicago School of Law, 26 November 2011.
R. J. Delahunty and C. J. Motz, ‘Killing Al-Awlaki: The Domestic Legal Issues’, Idaho Journal of Law & Public Policy, 2012.
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United States Court of Appeal, District of Columbia, Laura Gonzalez-Vera et al. v. Kissinger et al., Case No. 05-5017, Appeal from the United States District Court for the District of Columbia, 9 June 2006.
Under the heading “standard of review”, the Court referred to this case when addressing the difficulties of reviewing politically charged subject-matter. It noted that ‘a dismissal under the political question doctrine constitutes a dismissal for lack of subject matter jurisdiction and "not an adjudication on the merits"’ (p. 10).
‘Treasury designates Anwar al-Awlaki key leader of AQAP’, CNN, 16 July 2010.
C. Savage, ‘Secrets Cited in White House Effort to Block Suit’, International New York Times, 25 September 2010.
C. Savage, ‘Suit Over Targeted Killings Is Thrown Out’, International New York Times, 7 December 2010.
M. Ratner, ‘Anwar al-Awlaki’s extrajudicial murder’, The Guardian, 30 September 2011.
M. Chulov, ‘Anwar al-Awlaki, al-Qaida cleric and top US target, killed in Yemen’, The Guardian, 30 September 2011.
M. Martinez, ‘U.S. drone killing of American al-Awlaki prompts legal, moral debate’, CNN, 1 October 2011.
C. Savage, ‘Relatives Sue Officials Over U.S. Citizens Killed by Drone Strikes in Yemen’, International New York Times, 18 July 2012.
‘Military sued over al-Awlaki Yemen drone death’, BBC, 18 July 2012.
A. Stone, ‘Drone Strikes Memo Debates Legality of Targeted Killing’, Huffington Post, 14 September 2012.
‘US admits drones killed four Americans’, Al Jazeera, 23 May 2013.
Memorandum for the Attorney General, U.S. Department of Justice - Office of Legal Counsel, 16 July 2010 (released 23 June 2014).
Memo justifying drone killing of American Al Qaeda leader is released, Los Angeles Times, 23 June 2014.