Al-Aulaqi v. Panetta
2014 U.S. Dist. LEXIS 46689, 2014 WL 1352452, 35 F. Supp. 3d 56 (2014)
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Rule of Law:
Special factors, including national security, military affairs, and foreign relations, counsel hesitation and preclude a Bivens damages remedy against federal officials for alleged Fifth Amendment due process violations arising from the targeted killing of a U.S. citizen abroad.
Facts:
- Anwar Al-Aulaqi, a dual U.S.-Yemeni citizen, was identified by the U.S. government as a key leader of al-Qa’ida in the Arabian Peninsula (AQAP).
- In July 2010, the U.S. Department of the Treasury designated Al-Aulaqi as a Specially Designated Global Terrorist, citing his role in recruiting for AQAP and his involvement in the attempted bombing of a U.S. airliner on Christmas Day 2009.
- Al-Aulaqi publicly called for 'jihad against America' and praised terrorist attacks against the U.S., including the Fort Hood shooting.
- The U.S. government, through its Joint Special Operations Command (JSOC), placed Al-Aulaqi on a 'kill list.'
- On September 30, 2011, a U.S. drone strike in Yemen targeted and killed Anwar Al-Aulaqi.
- Samir Khan, a U.S. citizen, was traveling in the same vehicle as Al-Aulaqi and was also killed in the strike.
- On October 14, 2011, a separate U.S. drone strike in Yemen, which targeted another individual, killed Anwar Al-Aulaqi's 16-year-old son, Abdulrahman Al-Aulaqi, also a U.S. citizen.
Procedural Posture:
- Nasser Al-Aulaqi and Sarah Khan, as personal representatives of the estates of the three deceased U.S. citizens, filed suit against former Secretary of Defense Leon Panetta and other high-ranking military and intelligence officials in their personal capacities.
- The lawsuit was filed in the U.S. District Court for the District of Columbia.
- The plaintiffs sought monetary damages for alleged violations of the decedents' Fourth and Fifth Amendment rights.
- The defendants filed a motion to dismiss the complaint, arguing that the case was a nonjusticiable political question and that special factors precluded a Bivens remedy.
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Issue:
Do special factors related to national security, military affairs, and foreign policy preclude a Bivens damages remedy for an alleged violation of a U.S. citizen's Fifth Amendment due process rights when that citizen is targeted and killed abroad by the U.S. government?
Opinions:
Majority - Rosemary M. Collyer
Yes, special factors preclude a Bivens remedy in this context. Although the plaintiffs' claims are justiciable and not barred by the political question doctrine, a damages remedy against individual federal officials is unavailable for the targeted killing of a U.S. citizen abroad in the course of military and national security operations. The court reasoned that the Constitution commits decisions regarding warmaking, national security, and foreign policy to the political branches (Congress and the President), not the judiciary. Allowing a lawsuit would impermissibly require the court to scrutinize sensitive military and intelligence decisions, including target selection and the chain of command, thereby interfering with the separation of powers. Citing D.C. Circuit precedent in military detention cases like Doe v. Rumsfeld, the court found that extending Bivens would disrupt the ability of armed forces to act decisively and would come at an uncertain cost to national security. The case also implicates foreign policy, another area where courts are reluctant to intrude. Therefore, these special factors counsel hesitation and bar the creation of a judicial remedy for damages.
Analysis:
This decision significantly limits the ability of individuals to seek judicial remedy for the U.S. government's targeted killing of its own citizens abroad. By extending the 'special factors' analysis from military detention cases to targeted killings, the court solidifies a high barrier to holding individual officials accountable for alleged constitutional violations in the national security context. The ruling reinforces strong judicial deference to the executive and legislative branches on matters of war and foreign policy, effectively closing the courthouse door to damages claims arising from these actions. It suggests that any remedy for such an alleged constitutional violation would have to come from the political branches, not the courts.
