It sometimes strains the mind to adapt to the "new normal" that constitutes our contemporary legal framework since the advent of the so-called war on terror. In just 10 years, terms like "indefinite detention" and "torture" no longer describe crimes per se — at least not to many former and some current government lawyers, sitting judges and perhaps even Supreme Court justices.
Now a federal judge has said that federal courts cannot review whether and how the government engages in "targeted killings" of American citizens believed to be supporters of terrorism.
In a lengthy opinion (pdf) last week, Judge John Bates of the federal district court for the District of Columbia determined that the father of a man believed to have been targeted for assassination by the CIA lacked standing to bring suit as his son's "next friend" in challenging the constitutionality of an alleged "targeted killing" program conducted by the U.S. government, which purportedly authorizes the CIA to kill certain terrorism suspects.
The result was the dismissal of a suit brought by the father of Anwar Al-Aulaqi, born in New Mexico and raised in the United States. He didn't leave the U.S. until 2004. But Al-Aulaqi is suspected of having "engaged in operational planning" of attacks against the U.S. since then from what is thought to be his hideout in Yemen. He is believed to have helped plan the foiled Christmas Day 2009 bombing of a Detroit-bound plane and offered encouragement to the Fort Hood shooter, who killed 13 people on a military base in Texas in November 2009.
The U.S. government has designated Al-Aulaqi a Specially Designated Global Terrorist. According to widespread media reports, President Barack Obama has authorized drone attacks designed to kill individuals on the SDGT list. Al-Aulaqi has reportedly stated that he will "never surrender to the U.S." Al-Aulaqi's father brought suit in his son's absence, arguing that the list is essentially a "kill list," used as part of a targeted-killing program that violates the constitutional rights of his son and is a violation of international law.
The D.C. court dismissed the case without ever taking up the ugly substantive question at the heart of the case: Can the U.S. government legally designate an American citizen for assassination? If that seems a bizarre question, it is only so in the context of the terrorism jurisprudence of the last 10 years.
It's worth remembering that only through a series of hard-fought and sharply divided decisions did the Supreme Court conclude that the U.S. government could not carve out zones outside the United States where no U.S. law applies and hold detainees without charge or access to courts; that U.S. citizens held as material suspects in terrorism actions must be afforded due process; and that military commissions used to try terrorism suspects must provide detainees with the basic rudiments of due process. Much of this is owing to the leadership of recently retired Justice John Paul Stevens, whose powerful opinion in Rasul v. Bush in 2004 helped turned the Supreme Court and this country away from some of the worst excesses of the Bush administration's prosecution of the war on terror.
But if those opinions pulled the U.S. back from some of the most egregious expressions of extra-legal conduct, the core policies of the U.S. remain unchanged, including the continued practice of holding terrorism suspects indefinitely without charge. This is in large part because the executive branch, under both the Bush and Obama administrations, has been successful in keeping many of its practices away from judicial review.
Bates decided that Al-Aulaqi's father could not demonstrate that he stood in the place of his son in bringing suit. Parents do not, per se, represent the interests of their children, according to Bates. Nor is there any evidence that Al-Aulaqi approves of or otherwise endorses his father's suit on his behalf.
In a troubling tautology, Bates contends that Al-Aulaqi could surrender to U.S. authorities and himself challenge the alleged "targeted killing" practice and his designation as an SDGT. But to press this point is to ignore the damage done by U.S. detention policies of the past 10 years. Given the continued practice of detaining terrorism suspects without charges or trial, as well as past revelations of waterboarding (a practice believed to have ended in 2006) and other forms of torture, any terrorism suspect — even one who wished to argue his innocence — would be hesitant to surrender himself to U.S. authorities.
But most disturbing is Bates' decision that the substantive questions raised by Al-Aulaqi's father fall beyond the proper scope of judicial review. Once again invoking the "case or controversy" requirement, Bates contends that the questions raised by Al-Aulaqi's father are "political questions" and therefore not sufficiently constitutionally capable of review by a federal court. In so doing, Bates has placed the practice of targeted assassination by our government beyond judicial review. The implications are staggering and potentially extend far beyond the contours of the claim raised by Al-Aulaqi's father.
In fact, the court's decision in Al-Aulaqi is reminiscent of a decision earlier this year by the U.S. Court of Appeals for the 9th Circuit in California, which held that a case filed against a U.S. corporation for its participation in organizing and planning flights (pdf) for the CIA, in which terrorism detainees were flown to countries with the knowledge that they would be subject to torture (a practice known as extraordinary rendition), could not be maintained in federal court because to reveal the government's participation in such a practice would compel the revelation of so-called state secrets.
There is an obvious and devastating consequence of Bates' decision: The executive branch can potentially create a list of U.S. citizens deemed terrorists based on criteria it need never make public, and then order the assassination of those citizens anywhere in the world. And no court in the U.S. has the ability to review that practice as unconstitutional or otherwise illegal.
It is enough that the U.S. government, under both Presidents Bush and Obama, is believed to have participated in some of these actions in the name of defending our country. But the decision of our federal courts to remove from judicial review actions by the executive that, if undertaken, violate domestic and international law does even more damage to our country by further eroding the principle that no one — and no branch of our government — is above the law.
Sherrilyn A. Ifill, who teaches at the law school of the University of Maryland, writes about the law for The Root.