By Nicholas Ulrich
Last Friday, Judge Rosemary Collyer of the District Court for the District of Columbia dismissed the case brought by Nasser Al-Aulaqi over the drone killings of his son, Anwar Al-Aulaqi, and grandson Abdulrahman Al-Aulaqi. Unmanned U.S. drone strikes in Yemen killed Anwar and Abdulrahman, both of whom were United States citizens. The Obama Administration specifically targeted Anwar after deeming him a terrorist and placing him on a “kill list.” Though suspected of facilitating the attempted Christmas Day bombing of Northwest Airlines Flight 253 in 2009, Anwar was never charged, tried, or convicted of any crimes. Despite this, a U.S. drone killed him on September 30, 2011 while he was driving a car in Yemen.
Two weeks later, an unmanned drone strike killed Anwar’s teenage son, Abdulrahman, while he was sitting in an open-air café in southern Yemen. Abdulrahman and the six others killed with him were not specifically targeted nor officially deemed terrorists by the Obama Administration. Rather, they were mere bystanders in a strike intended for Ibraham Al-Banna, an Egyptian national. Incidentally, Al-Banna was not killed in the strike.
Nasser Al-Aulaqi brought suit against, among others, former Secretary of Defense Leon Panetta and former CIA Director David Petraeus, who allegedly planned and coordinated the strikes. Nasser brought a Bivens action, alleging that the government officials had violated his son’s and grandson’s constitutional rights, including their Fifth Amendment rights to procedural and substantive due process of law. A Bivens action, named for the case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, allows a private cause of action for an individual to sue federal officials who violate a person’s constitutional rights. These actions, however, are fraught with procedural and substantive perils, making it difficult for a plaintiff to prevail.
The defendants moved to dismiss the case, filing a motion under Rule 12(b)(1) for lack of subject matter jurisdiction, arguing that the case raised non-justiciable political questions. In the alternative, they argued that “special factors” make Bivens inapplicable in this context, and the case should be dismissed under Rule 12(b)(6) for failure to state a claim.
The applicability of the political question doctrine, a prudential, judicially-created doctrine that generally applies when there is a potential conflict between two or more branches of government, was key to the 12(b)(1) motion. Under the doctrine, a court will decline to decide a question if deciding it would interfere with one of the other co-equal branches of government. Here, Judge Collyer rejected the application of the political question doctrine, noting that “[t]he 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.”
Despite the inapplicability of the political question doctrine, Judge Collyer dismissed the suit, granting the 12(b)(6) motion. She found that Nasser failed to state a claim on behalf of Abdulrahman because a due process violation requires more than mere negligence. That is, if the government’s conduct amounts to merely a negligent deprivation of life, liberty, or property, there can be no claim under the due process clause. Because the United States did not specifically target Abdulrahman or anticipate his death, the court dismissed the claim. The court did not discuss whether an individual could recover if the government acts with reckless disregard for the lives of American citizens abroad.
Judge Collyer further held that Nasser’s claim on behalf of Anwar failed because “special factors,” like national security, precluded a Bivens action. While the Supreme Court, in Bivens, allowed the private cause of action, it noted in its analysis that there were no “special factors counseling hesitation” to allowing the action in the factual context of the Bivens case. Since then, the Court has interpreted that language to imply that courts should not entertain a Bivens action when there are “special factors counseling hesitation.” The D.C. Circuit noted in Doe v. Rumsfeld that factors such as potential interference with military, intelligence, and national security “counsel hesitation” and preclude a Bivens action. Following this reasoning, Judge Collyer granted the defendant’s motion to dismiss.
Judge Collyer’s strong language in the political question section of her opinion was noticeably absent from her discussion of the “special factors” under Bivens. In the latter inquiry, she noted that allowing the suit to continue would “hinder [the defendants’] ability in the future to act decisively and without hesitation in defense of U.S. interests.” Without a Bivens action, however, there is no way to vindicate the constitutional rights of Anwar Al-Aulaqi or his son. Thus, it appears that the executive branch does have “carte blanche to deprive a U.S. citizen of his life without due process and without any judicial review,” at least where the citizen is overseas and suspected of terrorist activity. Refusing to allow this action raises serious concerns, especially given the continuing development and use of modern technology, like unmanned drones, which allow the United States to kill remotely individuals all across the world.
Washington Journal of Law, Technology & Arts 