No Remedy for Drone Deaths

Government officials cannot be held personally liable to victims of U.S. targeted killing strikes, a federal district court in the District of Columbia ruled, whether or not the decedent was the intended target of the strike and regardless of U.S. citizenship. (Al-Aulaqi v. Panetta.) Anwar Al-Aulaqi, a designated terrorist, was intentionally targeted and killed in a drone strike in Yemen in September 2011. His son Abdulrahman was killed in another strike two weeks later, although he was not its intended target. This lawsuit was brought by Nasser Al-Aulaqi seeking damages on behalf of the estates of his son, Anwar, and his grandson, Abdulrahman, and by Sarah Khan, the mother of Samir Kahn, who was killed in the same drone strike that claimed Anwar Al-Aulaqi’s life. All three of the deceased were U.S. citizens. The plaintiffs argued that the federal officials responsible for ordering the drone strikes violated the Fourth and Fifth Amendment rights of the decedents.

After reciting the facts of the case and taking judicial notice of certain aspects of them, the judge addressed whether the lawsuit should be dismissed as non-justiciable under the political question doctrine, as had occurred in an earlier suit by Nasser Al-Aulaqi which sought to enjoin the government from targeting his son. The judge in that case dismissed the suit, finding that the father lacked standing to assert constitutional rights on behalf of his son and that the case raised non-justiciable political questions. The defendants urged the judge to apply the same political question reasoning to the new lawsuit, but the judge declined, finding that the context of the new case–a prayer for damages for an actual killing rather than an injunction preventing the future possibility of one–raised the Fifth Amendment issues “more directly and acutely.” The court also declined to apply precedent involving an alien suing for deprivation of property by military force, explaining that such plaintiffs “are not comparable to U.S. citizens suing for deprivation of their lives.”

Having found the requisite subject matter jurisdiction, the judge turned to the claims at issue. The plaintiffs asserted claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics based on constitutional violations under the Fourth and Fifth Amendments as well as the clause prohibiting bills of attainder. The judge rejected the Fourth Amendment claim because none of the decedents had been subjected to a “seizure” within the meaning of the Fourth Amendment, in part because “[u]nmanned drones are functionally incapable of ‘seizing’ a person; they are designed to kill, not capture.” (The Supreme Court has found in other contexts that the use of lethal force by police can implicate the Fourth Amendment.)

The judge next addressed the Fifth Amendment due process claims, both procedural and substantive. To state a claim for a violation of procedural due process, the court explained, a plaintiff must establish that government officials knowingly deprived him of a protected interest in life, liberty or property without notice and a meaningful opportunity to be heard. To establish a substantive due process claim, a plaintiff must assert government conduct that was so “deliberately indifferent” to his constitutional rights as to “shock the conscience.” The claims on behalf of Abdulrahman Al-Aulaqi and Samir Khan failed because they were not the intended targets of the strikes, the court explained; mere negligence on the part of government officials does not give rise to a constitutional deprivation of due process.

In contrast, the judge found, the plaintiffs stated plausible claims implicating both procedural and substantive due process with respect to Anwar Al-Aulaqi. The court did not opine that he was entitled to notice or a hearing or that his killing shocks the conscience, just that the plaintiffs asserted facts sufficient to avoid dismissal for failure to state a claim, which brought the judge to considering whether the court could fashion a remedy under Bivens. Bivens permits suits for damages against federal officers who violate a plaintiff’s clearly established constitutional rights in apparently very limited circumstances. Courts will not imply a Bivens remedy to a new fact pattern where “special factors counsel hesitation.” The judge could find no previous case affirming the availability of a Bivens remedy with respect to “the overseas killing by the United States officials of a U.S. citizen deemed to be an active enemy.” However, remedies claims in analogous cases involving wartime detention and alleged mistreatment of citizens have been found to be foreclosed based on such special factors as “separation of powers, national security, and the risk of interfering with military decisions.”

The judge concluded that this case, implicating as it does warmaking powers, national security, and foreign affairs, contains multiple factors counseling hesitation on the part of the courts. Congress and the Executive had acted in concert using their powers concerning national defense and the military to authorize and use force against Al Qaeda and affiliated forces without geographical limits, the judge explained. Moreover, the record the judge was able to assemble from public records was replete with evidence that Anwar Al-Aulaqi was a leader of a targetable armed force who had proved to be “an active and exceedingly dangerous enemy of the United States.” Under these circumstances, permitting the plaintiffs to pursue a Bivens remedy against government officials would pull the court too far into “the heart of executive and military planning and deliberation” and raise “fundamental questions regarding the conduct of armed conflict.” The court thought it best to leave such matters to the executive branch and Congress.

The court concluded that Al-Aulaqi’s citizenship did not change the analysis:

Indeed, the danger posed by an individual who is aligned with an enemy of the United States is very real, whether he is a citizen of this or another country. The United States is in a congressionally-declared military conflict. Anwar Al-Aulaqi was an AQAP leader who levied war against his birth country, as unambiguously revealed by his role in the Christmas Day bombing, as well as his video and writings. He also was a U.S. citizen. Whether Plaintiffs can claim damages against the United States is a decision for Congress and the Executive and not something to be granted by judicial implication. The persons holding the jobs of the named Defendants must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the President and with the concurrence of Congress. They cannot be held personally responsible in monetary damages for conducting war.

After castigating the government for its “truculent opposition” to its order to produce certain classified declarations, the court nullified that order and turned to the claim that the targeted killing violated the constitutional prohibition on bills of attainder. This claim was easily dismissed because it did not involve a legislative action designed to punish an individual.

The plaintiffs may appeal the decision to the U.S. Court of Appeals for the D.C. Circuit.

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No Remedy for Drone Deaths