Â Â Â Â Does a court have the power to enjoin the President from capturing or killing a senior member of al Qaeda who is in hiding in Yemen?
Â Â Â Â Anwar al-AulakiÂ is a dual citizen of the United States and Yemen.Â According to the United States government, al-Aulaki is a leader of al Qaeda, responsible for recruiting and training terrorists.Â He is believed to have had contact with and encouraged three of the 9/11 hijackers and Nidal Hasan, the Fort Hood shooter, with whom he exchanged 18 email messages.Â Â The government also asserts that Aulaki prepared Umar Farouk Abdulmuktallab, the "underpants bomber," for his attempt to bring down a Northwest Airlines flight on Christmas Day, 2009.Â Al-AulakiÂ is believed to be in hiding in Yemen, and the President has reportedly issued an order that al-Aulaki be captured or killed.Â His father brought this suit on his behalf against the President, the Secretary of Defense, and the Director of the C.I.A., seeking an injunction against his son's killing.Â Â
Â Â Â Â On September 25, the Department of Justice filed this brief in support of a motion to dismiss al-Aulaki's case on three grounds: (1) his father lacks standing to bring this case; (2) the political question doctrine makes this case nonjusticiable; and (3) the state secrets doctrine would prevent discovery of information necessary to resolve the case.Â Â Spencer S. Hsu of the Washington Post filed this reportÂ on theÂ President's motion in which he places his emphasis on the state secrets doctrine,Â and Glenn Greenwald of SalonÂ posted this reactionÂ characterizing the entire affair as the attempted assassination of an American citizen without due process of law.
Â Â Â Â In my opinion this is a simple case.Â The United States is at war with al Qaeda.Â The government has the lawful power and the constitutional duty to capture or kill al QaedaÂ members and leaders, whether or not they are citizens of the United States.Â If captured, they may be detained as prisoners of war, tried for war crimes, or tried in civilian court for crimes they have committed.Â If they do not surrender they may be attacked and killed.Â
Â Â Â Â The United States has called upon al-Aulaki to surrender.Â Hsu reports that Justice Department spokesperson Matthew Miller issued this advice to al-Aulaki:
"If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions."
Â Â Â Â With respect to the merits of the government's motion to dismiss, al-Aulaki himself clearly would have standing in this matter; however, he did not bring this case, and it not clear that his father has standing to bring this case on his behalf.Â Â While I am not convinced that the state secrets doctrine standing alone should constitute grounds for dismissal of a case, the necessity for secrecy in ongoing military operations is an important factor to be considered in determining whetherÂ or not this case presents a political question.Â And there is no doubt whatsoever that this is a political question.Â No American court ever has or ever should enjoin military action in a foreign theater of war.Â The Constitution assigns theÂ power to take offensive military action to the Commander-in-Chief, and the only remedy forÂ the abuse of this powerÂ is impeachment.Â Once al-Aulaki surrenders or is captured, he will have legal rights against his government that may be asserted in a court of law; until then, he is an enemy soldier, and he must defend himself on the battlefield.
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.