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Constitution Check: Will drone policy be tested in court?

May 29, 2013 by Lyle Denniston


Predator_droneLyle Denniston looks at the latest turn in a lawsuit over the deaths of three American citizens killed by drones as part of the war on terrorism.


“Since 2009, the United States, in the conduct of U.S. counterterrorism operations against Al-Qaeda and its associated forces outside of areas of active hostilities, has specifically targeted and killed one U.S. citizen, Anwar al-Aulaqi. The United States is further aware of three other U.S. citizens who have been killed in such U.S. counterterrorism operations. ... These [other] individuals were not specifically targeted by the United States.”

– U.S. Attorney General Eric H. Holder Jr., in a letter May 22 to leaders of Congress for the first time providing official public acknowledgment of the deaths caused to citizens by unmanned drone strikes.

“No later than June 5, 2013, [the government] shall file a memorandum of no longer than fifteen pages stating how, if at all, the Attorney General’s acknowledgment affects the legal issues in this case.”

– Order issued by U.S. District Court Judge Rosemary M. Collyer of Washington, D.C., on May 22 in a lawsuit filed by Anwar al-Aulaqi’s father and others seeking to test the legality of the Obama administration’s drone and targeted killing policy. The lawsuit seeks to recover money damages for the citizens’ deaths.


One of the most delicate and challenging tasks of U.S. federal courts is to decide when they may judge, by legal norms, the conduct of a highly secret government program that causes harm to someone. In the years of the government’s “war on terrorism,” judges have shown a continuing reluctance to weigh the constitutionality of such programs, and they have used a variety of legal arguments for that reluctance.

The Obama administration, however, may have made it somewhat easier for the challengers to the legality of its ongoing drone strikes policy, by adopting a policy that the president and his aides have said was aimed at making that program more “transparent.” It just might get them into legal trouble in the district court of Judge Rosemary M. Collyer.

Even as the president and his associates have publicly talked of a fuller airing of drone policy, lawyers from the Justice Department for months have been attempting to persuade Judge Collyer to shut down—without a decision—the case of Al-Aulaqi v. Panetta, and others.

The families of three of the four U.S. citizens whose deaths Attorney General Holder acknowledged were the result of drone strikes filed that lawsuit against present and former government officials, seeking to hold them personally responsible for the deaths.

The three were Anwar Al-Aulaqi, his son Abdulrahman Al-Aulaqi, and Samir Khan. Anwar Al-Aulaqi was killed, along with Khan, in a drone strike in Yemen on September 30, 2011. Two weeks later, Al-Aulaqi’s 16-year-old son was killed by a strike in southern Yemen. Parents of the two men killed in September (one is also the grandfather of the youth killed in October of that year) filed the lawsuit last July, and it was assigned to Judge Collyer.

Up to now, the two sides have been battling through lengthy legal briefs. The judge has scheduled a hearing for July 19, focusing directly on the government’s motion to dismiss the case altogether.

“This case,” the challengers argued in one of their court filings, “concerns the most fundamental right the Constitution guarantees to citizens: the right not to be deprived of life without due process of law. ... The three individuals were killed without ever being charged with or convicted of a crime. Their families have never received any explanation of why they were killed. ... [The government’s] argument that the judiciary should turn a blind eye to the executive’s extrajudicial killing of American citizens misunderstands both the individual rights guaranteed by the Constitution and the courts’ constitutional duty to safeguard those rights from encroachment.”

Justice Department lawyers, however, have made a variety of arguments why the case should not go forward.  The most technical argument is that neither of those who sued has a legal right to speak for the estates of the three dead persons, because no court has appointed them to manage those estates.

If that argument does not end the case, the department’s lawyers have argued more sweepingly that the case should be stopped (1) because it involves a “political question” that is beyond the reach of the courts, (2) because the courts should hesitate long before they fashion  a new remedy of money damages that would make the courts supervisors of executive action, and (3) because the government officials sued in the case for damages they would personally have to pay have immunity to constitutional claims never before recognized by the courts.

Under Judge Collyer’s May 22 order, issued just hours after the public release of Attorney General Holder’s letter to Congress, administration lawyers must now attempt to convince the judge that nothing has changed legally because of the government’s acknowledgment.  While the letter is technically a concession about the facts of targeted killing of citizens, it is in no way an admission that those killings violated any provision of the Constitution or federal laws.

In fact, most of the contents of Holder’s lengthy letter attempt to legally justify the targeting of Anwar Al-Aulaqi.  It does not attempt to justify the other killings, except by implication from a broader defense of the legality of drone policy and a general suggestion that the policy includes an attempt to limit what it calls “collateral damage” – presumably, a reference to other killings of untargeted individuals.

Judge Collyer has a reputation in the Washington courthouse of being an independent and self-confident judge, so it is anybody’s guess whether the government’s reply will bolster or weaken its case for dismissal of the case.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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