Presswires are reporting that Judge John Bates has dismissed the much-noticed case in which the ACLU and the Center for Constitutional Rights sought to bring suit on behalf of Anwar Al-Aulaqi’s father, contesting the ability of the President to target his son, an American citizen hiding abroad in Yemen who the government says is a targetable participant in a terrorist group covered by the AUMF. The opinion is here. The news story points to standing problems for the father. Says the AP:
U.S. District Judge John Bates said in a written opinion Tuesday that al-Awlaki’s father does not have the authority to sue on his son’s behalf. But he says the case raises serious issues about whether the United States can plan to kill one of its own citizens.
Quick update: On a fast read of the opinion — well, anyone interested in these questions needs to read it post haste. Far from merely being a narrow discussion of standing, it goes on to discuss the political question doctrine in great detail, and concluding on this point:
…this Court recognizes the somewhat unsettling nature of its conclusion — 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. But this 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, see El– Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. [p. 77 opinion, emphasis added]
But opinion contains much, much more. A very interesting discussion of why the Alien Tort Statute does not offer an avenue; state secrets doctrine; there is a lot of stuff here. More when I’ve read it more closely. It is an impressive work in judicial opinion-crafting, regardless of what one thinks of the outcome. (Larkin Reynolds at Lawfare offers a bunch of snippets from the opinion.)
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1. nationality
Anwar Al-Aulaqi has dual citizenship. Is it OK from international law standpoint of view? International law does not favor dual nationality. and for test to determine nationality, See Nottebohm (Liechtenstein v. Guatemala)
any argument on the US government side which challenged the assumption that he is U.S. citizen ?
2. ATS.
He is presumably U.S. citizen. no claim under ATS whose requires plaintiff to be alien.
3. political question
my suspicion is that whether the claim is political question or political issue depends on whether U.S. government act under the color of IHL, because it might be principal justification for targeted killing.
That is, if the targeted killing of him takes place unarguably during armed conflict, if he support or is mind-master of adversary, nobody would take issue with killing him.
Who wrote the memo? will be exposed to liability like John Yoo? very unlikely. Torture was torture, whereas applicability of IHL recently becomes "amorphous"
