Court: United States District Court for the District of Columbia

Type of decision: Opinion

Date judgment: 4 April 2014

Case no.: 12-1192 (RMC)

Area of jurisdiction: Civil law

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Claim: By personally authorizing and directing the strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi, the defendants violated (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.

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Principle legal argument(s): Defendants, U.S. officials, intentionally targeted and   killed U.S. citizens abroad without due process; Defendants violated the Fourth Amendment right by using excessive force through “authorizing and directing their subordinates to use lethal force” against them. Finally,   Plaintiffs rely on Bivens to support their claims against individual federal officials.

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Type of reparation sought: Plaintiffs seek to hold defendants individually liable for monetary damages for violating the rights of the deceased under the U.S. Constitution.

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On September 30, 2011, U.S. drone strikes killed Anwar Al-Aulaqi, along with Samir Khan and two other men. Two weeks later, the U.S. launched another drone strike in Yemen, killing Anwar Al-Aulaqi’s 16-year-old son, Abdulrahman, and six others. On behalf of the families of Anwar al-Aulaqi, his son Abdulrahman, and Samir Khan, The Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) filed a case against former Secretary of Defence Panetta, former JSOC Commander Admiral McRaven, JSOC Commander Lieutenant General Joseph Votel and former CIA Director General David H. Petraeus (defendants), charging that defendants violated (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 [p. 13]. The question presented is whether defendants who allegedly personally authorized and directed the strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi can be held personally liable for monetary damages for violating the rights of the deceased under the U.S. Constitution [p. 13].

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Defendants moved to dismiss arguing that the court lacks jurisdiction firstly because the complaint raises a non-justiciable political question, secondly that “special factors” preclude a cause of action under Bivens and lastly that defendants are entitled to qualified immunity.

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Political question doctrine does not bar court from reviewing the case

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After laying out the facts, including the U.S. Government’s admission that it targeted and killed Anwar al-Aulaqi and killed Khan and Abdulrahman al-Aulaqi incidental to drone strikes aimed at other targets, Judge Collyer first addresses the political question doctrine [p.18]. At the outset she states that “The powers granted to the Executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a U.S. citizen of his life without due process and without any judicial review” [p. 20.] Significantly, and other than was the case in in Al-Aulaqi v. Obama, the court holds that the political question doctrine does not bar it from reviewing the complaint and thus that is has subject matter jurisdiction, arguing that the latter case alleged that the United States’ intention to kill Anwar Al-Aulaqi violated the Fifth Amendment as where the current case raises the issue more directly and acutely, asserting a claim for damages for the actual killing of Anwar Al-Aulaqi without regard to Fifth Amendment protections [footnote 21, p. 21 ].

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Court’s findings on violation of Fourth and Fifth Amendment Rights

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Next, Judge Collyer considers plaintiffs’ constitutional claims that the defendants have violated the Fourth and Fifth Amendments. Regarding the Fourth Amendment claim, the court notices that Plaintiffs do not allege that the government “seized” the decedents – a prerequisite of the Fourth Amendment. The defendants killed the decedents, rather than capture them, and thus the court decides there cannot be a Fourth Amendment claim. Subsequently, the Fifth Amendment due process claims on behalf of Adulrahman al-Aulaqi and Khan is dismissed because “[m]ere negligence does not give rise to a constitutional deprivation” of due process, and Abdulrahman and Khan “were not targeted and their deaths were unanticipated” [p. 26]. Regarding the due process claim on behalf of Anwar al-Aulaqi, the court holds that plaintiffs complaint “states a ‘plausible’ procedural and substantive due process claim”, alleging that Anwar al-Aulaqi was intentionally targeted and killed by defendants. Nevertheless, Judge Collyer concludes that even if the government violated Anwar al-Aulaqi’s due process rights, there is “no available remedy under U.S. law for this claim” [p. 27].

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Special factors preclude a Bivens claim

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To support their claims against individual federal officials, plaintiffs rely on a Bivens remedy. Bivens permits a damages action against a federal officer for a violation of a plaintiff’s clearly-established constitutional rights. Although according to the court, no prior case has discussed precisely whether a plaintiff can proceed on a Bivens action that claims deprivation of life without due process based on the overseas killing by United States officials of a U.S. citizen deemed to be an active enemy, it refers to analogous cases that precluded a Bivens remedy due to the presence of “special factors” that includeseparation of powers, national security and the risk of interfering with military decisions. According to the court, permitting plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the court into “the heart of executive and military planning and deliberation,” as the suit would require the court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States [p. 36]. Judge Collyer states that the US Constitution commits decision-making in this area to the president and to Congress and added that allowing a Bivens action against top government officials would “hinder their ability in the future to act decisively and without hesitation in defense of U.S. interests” [p.36]. As a result, the “special factors” exception to Bivens has left the plaintiffs without a remedy for constitutional violations. The court opined that whether plaintiffs can claim damages against the United States is “a decision for Congress and the Executive and not something to be granted by judicial implication” [p. 37] and that the defendants are not liable for monetary damages because they must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the President and with the concurrence of Congress.

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Having determined that a Bivens claim was not viable, court did not reach the “qualified immunity” argument set forth by the defendants.

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Bill of Attainder Clause

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Plaintiffs also allege that defendants violated the Constitution’s Bill of Attainder Clause by placing Anwar Al-Aulaqi on the JSOC “kill list.” A Bill of Attainder requires legislative action intended to punish an individual and since plaintiffs can point to no legislative action, the court concludes that the Bill of Attainder Clause does not apply.

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The case was dismissed on April 4, 2014