Saturday, April 5, 2014

US Authority to Kill US Citizens Abroad: The Water Just Got Muddier

     For some time, the policy of the US government to kill American citizens abroad who take up arms against the US has been called into question for potential constitutional violations.  In an opportunity for some clarity on the matter, a federal district court judge yesterday, instead, further complicated matters.  District of Columbia district court judge Rosemary Collyer (a George W. Bush appointee who also serves on the FISA court) dismissed a suit yesterday filed by Nasser al-Awlaki, the father of Anwar al-Awlaki, an American citizen who was killed by a US drone strike after he decided to join al-Qaeda in the Arabian Peninsula (AQAP).  Anwar al-Awlaki's teenage son was also killed by a US drone strike, upsetting many human rights activists as he had seemingly nothing to do with any jihad against the United States.  

     Nasser al-Awlaki was seeking damages from the US government and in particular US officials - Leon Panetta, former Director of the Central Intelligence Agency (CIA), and Admiral William H. McRaven, former Commander of JSOC.  Nasser sought damages for violations of "(1) the Fifth Amendments right of the deceased to substantive and procedural due process; (2) the Fourth Amendment right of the deceased to be free from unreasonable seizures; and (3) the right of Anwar Al-Aulaqi under the Constitution’s Bill of Attainder Clause."

     What can be inferred from Judge Collyer's ruling for such future strikes?  First, Collyer takes a somewhat contradictory separation of powers position.  Collyer relies on the "political question doctrine," which asserts that matters of policy are not justiciable.  Foreign policy and matters of national security are reserved for the executive and legislative branches. The judicial branch has a limited role in such matters.  However, Judge Collyer also maintains under existing case law, that the judicial branch does have an interest in protecting the due process rights of Americans abroad stating, "The Bill of Rights was passed to protect individuals from an over-reaching government, and this Court cannot refuse to provide an independent legal analysis," and that Congress and the president do not have unlimited power in this vein.  Judge Collyer also honors the Bill of Attainder doctrine, which bans legislative adjudication in place of a judicial ruling.  "No formal action of either the House or Senate was taken to approve the strike against Anwar Al-Aulaqi. Because Plaintiffs can point to no legislative action, the Bill of Attainder Clause does not apply." 

     Second, when examining the direct constitutional claims of Fourth and Fifth Amendment violations, Judge Collyer immediately dismisses Fourth Amendment claims on grounds that, "'Only when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.'  Unmanned drones are functionally incapable of 'seizing' a person; they are designed to kill, not capture. As the decedents were not 'seized,' Plaintiffs have not stated a Fourth Amendment claim."

     On Fifth Amendment grounds, plaintiffs challenged on substantive and procedural due process claims.  Procedural due process establishes that one had a "protected interest in life, liberty, or property" and the government knowingly deprived these interests without notice while substantive due process establishes, "a government official was so 'deliberately indifferent' to his constitutional rights that the official’s conduct 'shocks the conscience.'  Conduct 'shocks the conscience' when it was 'intended to injure in some way.'"  Judge Collyer essentially demurs on this issue writing, "The Court merely holds that the Complaint states a “plausible” procedural and substantive due process claim on behalf of Anwar Al-Aulaqi."

     Third, in this particular case, since the plaintiffs are not US citizens, there is no judicial remedy under existing doctrine therefore the case shall be dismissed.  Siting what is referred to as the Bivens doctrine, (established in Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, where petitioners sued the government for violating their Fourth Amendment rights for unreasonable search and seizure during a raid; despite having no legal remedy, a necessity for establishing standing to sue, the doctrine established individuals could sue on a constitutional principle itself without a legal remedy) Judge Collyer decided that "separation of powers, national security, and the risk of interfering with military decisions––preclude the extension of a Bivens remedy to such cases."  With Judge Collyer's ruling here, estates may only seek remedy from the United States if they themselves are US citizens, which virtually throws out any wrongful death suits or violations of the Fifth Amendment.  According to Judge Collyer, "Foreign aliens suing for deprivation of a foreign property interest are not comparable to U.S. citizens suing for deprivation of their lives."

     Fourth, Judge Collyer, in the most profound portion of her ruling, provides substance and validation to the Authorization to Use Military Force (AUMF).  In line with respecting separation of powers, Collyer writes, "The need to hesitate before implying a Bivens claim is particularly clear.  Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa’ida and affiliated forces.  It is the Executive’s position that AQAP is affiliated with al-Qa’ida.  Further, the AUMF does not contain geographical limits."  This assertion is most important because many lawmakers wish to repeal or redefine AUMF given its ambiguity and expanded jurisdiction by the Obama administration.  Applying Judge Collyer's ruling here, the executive branch has the authority to ensure safety in national security matters and shared interests in foreign policy while "This Court is not equipped to question, and does not make a finding concerning, Defendants’ actions in dealing with AQAP generally."  

     This ruling is sure to stir the pot in the debate over the legality over killing American citizens overseas.  Aside from the doctrine established in Citizens v Reagan, which afforded due process rights to US citizens who's due process rights were violated by "contras" or Nicaraguans being supplied weapons by the US, (and according to Judge Collyer's interpretation of Citizens v Reagan, circumvents the "political question" doctrine) it appears the judicial branch is completely removed from issuing rulings on similar matters.  What this means is the US government does not have to answer to anyone and can continue its killings of American citizens (when capture is not feasible) unfettered.  The next major test will be if a similar suit is brought by an American executor rather than Nasser al-Awlaki who was not an American citizen.  For now, the government can carry on as usual.            

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