Note: On April 4, 2014, the U.S. District Court for the District of Columbia, dismissed the wrongful death lawsuit filed against the United States by the parents and grandparents of Anwaw Aulaqi and Abdulrahman Al-Aulaqi. (Al-Aulaqi, et al. vs. Panetta, et al (2014 U.S. Dist. LEXIS 46689) The Court held that the courts can provide no remedy to the plaintiffs, because it would "impermissibly draw the court into the heart of executive and military planning and deliberation." On April 14, 2014, the Second Circuit Court of Appeal reversed a decision of a lower federal court, holding that the Federal Government's "extensive public relations campaign to convince the public that [the President's] conclusions about the lawfulness of the killing of Aulaqi are correct" constitute a waiver of any privilege to keep secret the memorandum prepared by lawyers in the Office of Legal Counsel, Department of Defense which sets forth "a rather elaborate [reasoning]" why the President can order American citizens killed, without indictment, trial, or conviction of any crime. (The New York Times, et al., vs. United States Department of Justice, et al. 2014 U.S. App LEXISt 7387.)
In 2010, Anwar Al-Aulaqi, an American citizen living in Yemen, was added to the Government's "kill list" because of his alleged "terrorist" activities. On September 30, 2011, he and another American citizen were killed by drone while traveling in an automobile in Yemen. Two weeks later, Anwar's sixteen year-old son, Abdulrahman, was killed by drone while eating with relatives at an open air café in the town of Azzan, Yemen. The strike killed seven persons.
Abdulrahman and cousin
In July 2012, Nasser Al-Aulaqi, Abdulrahman's grandfather, a citizen of Yemen, filed suit for wrongful death damages, in United States District Court, against the agents of the United States Government responsible for issuing the orders to kill his son and grandson—the Secretary of Defense, the Director of the CIA, and the military commanders that controlled the mechanics of the drone strikes. Liability, the suit alleges, is based upon the Government's violation of the decedents' rights under the Fourth and Fifth amendments to the United States Constitution, and that its action constitutes a Bill of Attainder within the meaning of the Constitution. (Nasser Al-Aulaqi v. Panetta, et al Case No. 1:12-ev-01192)
On December 14, 2012, the defendants filed a motion to dismiss the complaint for failure to state a cause of action. The essence of the forty-five page brief in support of the motion is stated on the first page:
"The political branches, with few exceptions, have both the responsibility for—and oversight of—the defense of the Nation and the conduct of armed conflict abroad. The Judiciary rarely interferes in such arenas. In this case, Plaintiff asks this Court to take the extraordinary step of substituting its own judgment for that of the Executive."
Note: In fact, the Plaintiff is not asking the Court to substitute its judgment for that of the President; he is asking the Court to rule that the "judgment" of the President violates the Fourth and Fifth Amendment to the Constitution, because the President's "judgment" caused the lives of the Plaintiff's son and grandson to be taken by the Government without due process of law.
"Further, Plaintiff asks the Court to create a novel damages remedy, despite the fact that his claims are rife with separation of powers, national defense, military, intelligence, and diplomatic concerns. Under these weighty circumstances, this Court should leave the issue raised by the case to the political branches."
Note: There is hardly anything "novel" about seeking monetary damages from those responsible for carrying out actions that result in the wrongful death of American citizens—"wrongful,"in this case, because the taking of their lives occurred without "due process of law."
No provisions of the Constitution are more clear regarding the power of Government to claim the life of a citizen on the ground that its "judgment" authorizes it to kill.
Art II, Sec. 3. "Treason against the United States, shall consist only in levying war against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two witnesses to the same overt act, or on confession in open court."
Art V of the Bill of Rights: "No person shall be held to answer for an. . . infamous crime, unless on a presentment or indictment of a Grand Jury. . . ; nor shall any person be deprived of life without due process of law."In this context, "due process of law" means, at a minimum, "the right to a speedy and public trial. . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, and to have the assistance of Counsel for his defense."
Against these clear Constitutional commands, the Government tells us, the "judgment" of the President trumps all.
On December 14, 2012, The United States Government filed its "Statement of Interest" in support of the defendants' motion to dismiss the complaint, stating,
"The United States is not asserting the state secrets privilege in this litigation at this time. . . because the case can be resolved on other grounds. However, should this case proceed beyond the defendants' motion to dismiss, the United States reserves its rights to invoke the military and state secrets privilege to the extent that further litigation poses a risk of significant harm to national security."
Note: This means that if the defendants' motion to dismiss is denied by the Court, the Government will insist that nevertheless the case must be dismissed because of the risk the case will harm "national security."
On February 5, 2013, the plaintiff filed his brief in opposition to the defendants' motion to dismiss his complaint, stating the essence of the case as this:
"This case concerns the most fundamental right the Constitution guarantees to citizens: the right not to be deprived of life without due process of law. Defendants respond to this with various arguments that boil down to the assertion that the President has the unilateral authority to kill Americans he deems to be a 'terrorism suspect'—even if the suspect does not present any imminent threat, even if he is far removed from any battlefield, and even if he has never been charged, much less convicted, of any crime."
On March 7, 2013, the defendants filed their brief in reply to plaintiffs' opposition. After arguing for 24 pages the defense of "political question" and "qualified immunity," the defendants devoted one page to their contention that the plaintiff's allegations do not support the conclusion the President violated his son and grandson's constitutional right not to be deprived of their lives by the President "without due process of law." This is how the defendants, in essence, stated their argument:
The United States is engaged in an armed conflict with al-Qa'ida in the Arabian Peninsula.
Note: The Government, sans Judiciary, is claiming, here, that, regardless of the sovereignty of Nations, and without an express declaration of war against such sovereignties, it can invade the space of any nation occupying territory in the "Arabian Peninsula" with its military force and kill people and destroy private property.
The basis of this claim is the fact that, on September 18, 2001, the Congress (a "political branch") passed by majority vote what it called, "Authorization (for the President) to Use Military Force." The "Authorization (which Senator Obama did not vote for) reads thus: "The President is authorized to use all necessary and appropriate force against those. . . persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11th. . . , in order to prevent any future acts of terrorism against the United States."(Note the past tense of the verbs, plan, authorize, commit, and aid.")
"With respect to Anwar Al-Aulaqi, it cannot reasonably be disputed that he committed severe crimes as understood by U.S. Officials, regardless of whether he was ever charged. (he is alleged to have engaged in treason.)."
With respect to Anwar's son, Abdulrahman, "Plaintiff makes no allegation about the defendants' knowledge as to his presence at the open-air restaurant."
And, "Plaintiffs cite no support for their contention that the alleged launch of missiles at armed enemy groups in Yemen did not involve tense and rapidly evolving variables because the launch was planned in advance. In any event, whether the launch process was hurried or unhurried, the defendants were subjected to the pull of competing obligations—namely, the need to protect the nation from terrorist threats arising abroad versus other concerns, like the need to avoid excessive harm (read death) to innocent bystanders."
Note: Let's see if we can understand this: Panetta pulled the trigger, despite the risk innocent bystanders would be killed in a corner of the Arabian Peninsula, because he thought there was a need to protect the nation from a "terrorist threat arising abroad?" Like a prison official facing a riot, Panetta thought it was an occasion calling for fast action?
"In such circumstance," Panetta says, "only a conscience-shocking intent to cause harm arbitrarily, not deliberate indifference," can support the plaintiff's claim.( Webster defines the word "arbitrary" thus: "not fixed by rules but left to one's judgment based on whim, etc. despotic.")
I am sitting with my son at the Café Du Margot in Place Saint Germain de pre, in Paris, doodling on the paper table cloth. Somebody in the United States Government has decided, in secret, that I am concocting a terrorist threat against it. Zap comes the drone hit?
"And, again, other to assert that due process requires fair notice and a hearing, and to claim Anwar did not receive this, plaintiff fails to specify what process Anwar was due. (Huh?)
"In the context of military and intelligence operations abroad against a leader of AQAP like Anwar, notice and an opportunity to be heard simply have no place. In the circumstance of national danger, executive process suffices."
Note: Oh, don't you see: "executive process" trumps "due process" in the mind, now, of our "political branches. Where is it in the Constitution that the framers planted the concept of "executive process?