You want to stop the United States from trying to kill you? Then come out of hiding overseas and make your constitutional argument that the United States has no right to put you on its "kill" list. That's the loud message a federal trial judge in Washington sent Tuesday to Anwar Al-Aulaqi
, the radical American-born Muslim cleric who has been linked to several of the biggest terror-law cases of the past few years and who is now evidently hiding out in Yemen.
U.S. District Judge John Bates' highly anticipated ruling also contained another message -- this one aimed at the White House and the Pentagon -- which is sure to have Washington's legal and political communities buzzing
over the next few days and weeks. Recognizing that his conclusion was "somewhat unsettling," Judge Bates nevertheless conceded that there are "circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is 'constitutionally committed to the political branches' and judicially unreviewable." Good news for counterterrorism officials. Good news for our spies and soldiers overseas. Bad news for terror suspects like Al-Aulaqi. (I have used here the judge's spelling of the suspect's name rather than the more commonly used "Al Awlaki"
Earlier this year, Al-Aulaqi reportedly was placed on a secret government list of "targeted" terrorists whose capture or death was approved in advance by U.S. officials. This occurred, in part, because Al Aulaqi's name kept coming up in high-profile terror investigations; the Fort Hood massacre involving Maj. Nidal Malik Hassan, the so-called "Christmas Day" bombing attempt by suspect Umar Farouk Abdulmutallab, and the "Times Square" bombing attempt by Faisal Shahzad. American officials assert that Al Aulaqi is a serious and dangerous player in al-Qaeda operations in the Arabian Peninsula. The New York Times labels him "an eloquent Muslim cleric who has turned the Web into a tool for extremist indoctrination. Mr Awlaki is perhaps the most prominent English-speaking advocate of violent jihad against the United States."
Upon hearing the news of his son's dire classification, and evidently without first checking with Junior in Yemen, Al-Aulaqi's father promptly filed a lawsuit against the government seeking a judicial injunction precluding U.S. forces from killing his son. The lawsuit alleged that the government's program, targeted toward Al Aulaqi, countenances an "extrajudicial killing" that violates his constitutional rights and other protections guaranteed to him by law. Federal lawyers promptly asked the courts to toss out the case -- invoking
the controversial "state secrets" doctrine in doing so -- and that's precisely what Judge Bates did. On Tuesday, the veteran jurist with plenty of experiences in terror law cases since September 11, 2001, roundly rejected
and dismissed the lawsuit.
Judge Bates did so for many different reasons. He ruled that Al-Aulaqi's father had not satisfied the many requirements necessary to pursue this lawsuit on behalf of his son. There was no proof, for example, that Al-Aulaqi wanted to assert his constitutional rights in federal court in the manner contemplated by his father. Indeed, there was nothing stopping Al-Aulaqi from surrendering himself to the U.S. Embassy in Yemen, the judge wrote. "All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. Anwar Al-Aulaqi is thus faced with the same choice presented to all U.S. citizens."
The judge went further in explaining why the challenge to the "targeted killing" program had to go away long before trial. Because it touched upon expert military judgments, he concluded, it was necessarily a "political question" that he was bound to allow the executive branch to answer first. Through his lawsuit, Al-Aulaqi's father had asked the federal courts "to limit the circumstances under which the United States may employ lethal force against an individual abroad whom the Executive has determined 'plays an operational role in AQAP planning terrorist attacks against the United States.' " This Judge Bates would not do. Why? Because, he explained, the Supreme Court has repeatedly stated that:
"The Judiciary lacks the 'competence' to make 'complex subtle, and professional decisions as to the composition, training, equipping, and control of a military force,' and '[t]he ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.' "
Critics of the ruling no doubt will point to this section and complain that Judge Bates simply begged the question of whether there should have been a more thorough judicial review of the claims asserted by Al Aulaqi's father. And it's true. Perhaps if the so-called "target" one day does
turn himself in to the embassy in Yemen and then challenges his confinement we'll all get more answers. Judge Bates, however, didn't seem to hold out much hope for that possibility and neither should you. Even while his father's lawsuit was pending, the judge pointed out, Al Aulaqi repeatedly (and quite publicly) spoke out against America and her interests around the world. Such communications alone, of course, would not justify placement on any sort of a "kill" list. But nor do they indicate any likelihood that Al Aulaqi wants to become a civil plaintiff anytime soon.
As for the state secrets doctrine, pursuant to which the executive branch tells the judiciary that it cannot even legitimately inquire into certain matters which touch upon national security, Judge Bates punted. "Under the circumstances," he wrote," and particularly given both the extraordinary nature of this case and the other clear grounds for resolving it, the Court will not reach defendants' state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue."
It is unlikely that the D.C. Circuit Court of Appeals will overturn Judge Bates' ruling and even unlikelier still that the United States Supreme Court would do so. Al-Aulaqi is going to have to do more from his hideaway in Yemen if he truly wants his day in an American court.