The McCabe Law Firm

Anwar al-Awlaki is dead, killed by rockets fired from a U.S. drone over Yemen.  He was a U.S. citizen, having been born in New Mexico.  Many have expressed concerns about al-Awlaki’s “due process” rights, and some have recalled the passage from A Man for All Seasons, in which the Sir Thomas More character says that he would give even the Devil the protection of law, for the sake of More’s own safety. As the More character put it, “What would you do? Cut a great road through the law to get after the Devil? … And when the last law was down, and the Devil turned round on you – where would you hide, … the laws all being flat?”

I love that speech, even though the easy answer to it is that the Devil, having turned round, will not respect any laws. No law will restrain the Devil, and More will have achieved no safety by his high-mindedness and his failure to act. Of course, that is exactly what happened to More.  The narrator tells us at the end of the film that “Thomas More’s head was stuck on Traitors’ Gate for a month. Then his daughter, Margaret, removed it and kept it till her death.” Other sources say that his head was parboiled before being publicly displayed and that his daughter obtained the head by bribing the man whose job it was to throw it into the Thames.

In January 2010 President Obama publicly stated that the U.S. is at war with al-Qaeda and that we will do whatever it takes to defeat them. The President made those statements about al-Qaeda after the failed attempt by the alleged “underwear bomber” to blow up an airliner with hundreds of persons aboard as it was approaching an airport in Detroit on Christmas Day 2009. According to a Homeland Security/FBI bulletin, al-Awlaki was directly involved in that plot and in another failed plot in October 2010 to blow up cargo jets. The bulletin stated that al-Awlaki personally showed the underwear bomber how to detonate the bomb.

If al-Awlaki’s alleged actions were simply a criminal matter and if the U.S. could have apprehended him before he endangered the lives of more innocent Americans, then the due process clause of the Fifth Amendment should have provided him protection in an American court.  As one court already has held with regard to al-Awlaki, however, due process protections in American courts sometimes give way to the constitution’s grant of authority to the President over foreign and military affairs.

The court decision in the unsuccessful lawsuit brought by al-Awlaki’s father to remove his son from the government’s list of persons targeted for killing explains the government’s position.  The decision is worth quoting at length:

On July 16, 2010, the U.S. Treasury Department’s Office of Foreign Assets Control (” OFAC” ) designated Anwar Al-Aulaqi 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[.]” See Defs.’ Mem. at 6-7 (quoting Designation of ANWAR AL-AULAQI Pursuant to Executive Order 13224 and the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Fed. Reg. 43233 (July 16, 2010)) (hereinafter, ” OFAC Designation” ). In its designation, OFAC explained that Anwar Al-Aulaqi had ” taken on an increasingly operational role” in AQAP since late 2009, as he ” facilitated training camps in Yemen in support of acts of terrorism” and provided ” instructions” to Umar Farouk Abdulmutallab, the man accused of attempting to detonate a bomb aboard a Detroit-bound Northwest Airlines flight on Christmas Day 2009.

Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 10 (D.D.C. 2010).  (Note that the spelling of the plaintiff’s name differs from the one used for his son in the media.)  The government declined to confirm or deny that it had a standing order to kill al-Awlaki.  The district court held that it could not reach the merits, because the father lacked standing and because the case involved a political question:

[A]s the D.C. Circuit has explained, ” [i]t is not the role of judges to second-guess, with the benefit of hindsight, another branch’s determination that the interests of the United States call for military action.” Such military determinations are textually committed to the political branches …. The D.C. Circuit has on several occasions dismissed claims on political question grounds where resolution of those claims would require a judicial determination as to the propriety of the use of force by U.S. officials against a specific individual abroad.

The district court cited several cases involving the deaths of foreign individuals.

The district court recognized, however, that “it does not appear that any court has ever-on political question doctrine grounds-refused to hear a U.S. citizen’s claim that his personal constitutional rights have been violated as a result of U.S. government action taken abroad.”  The court held, “Nevertheless, there is inadequate reason to conclude that Anwar Al-Aulaqi’s U.S. citizenship-standing alone-renders the political question doctrine inapplicable to plaintiff’s claims.”

The court characterized its conclusion as “somewhat unsettling,” but held, nevertheless, as follows:

[T]here 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 …. [T]his case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens.

The court further explained that,

Contrary to Plaintiff’s assertion, in holding that the political question doctrine bars plaintiff’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. This Court readily acknowledges that it is a ” drastic measure” for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a “terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009,” But … a determination as to whether “drastic measures should be taken in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking.” 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 finds that the political question doctrine bars judicial resolution of this case.

I agree with the district court’s analysis that, in some cases, the constitutional text and structure of our federal government can preclude a court’s examination of an individual rights issue, however interesting that issue might be.  In the case of al-Awlaki in particular, separation of powers trumps due process.

[Note: For clarity, I have omitted internal citations to other court decisions and documents in the quotations from the court’s decision in Al-Aulaqi v. Obama.]