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The Case of Anwar al-Awlaki v. Barack H. Obama

by Professor Will Huhn on October 1, 2010

in Constitutional Law,Political Question,Political Question,Standing,Wilson Huhn

     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?

     Anwar al-Aulaki is a dual citizen of the United States and Yemen.  According to the United States government, al-Aulaki is a leader of al Qaeda, responsible for recruiting and training terrorists.  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.  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.  Al-Aulaki is believed to be in hiding in Yemen, and the President has reportedly issued an order that al-Aulaki be captured or killed.  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.  

     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.  Spencer S. Hsu of the Washington Post filed this report on the President's motion in which he places his emphasis on the state secrets doctrine, and Glenn Greenwald of Salon posted this reaction characterizing the entire affair as the attempted assassination of an American citizen without due process of law.

     In my opinion this is a simple case.  The United States is at war with al Qaeda.  The government has the lawful power and the constitutional duty to capture or kill al Qaeda members and leaders, whether or not they are citizens of the United States.  If captured, they may be detained as prisoners of war, tried for war crimes, or tried in civilian court for crimes they have committed.  If they do not surrender they may be attacked and killed. 

     The United States has called upon al-Aulaki to surrender.  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."

     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.  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 whether or not this case presents a political question.  And there is no doubt whatsoever that this is a political question.  No American court ever has or ever should enjoin military action in a foreign theater of war.  The Constitution assigns the power to take offensive military action to the Commander-in-Chief, and the only remedy for the abuse of this power is impeachment.  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.

{ 8 comments }

larry d. October 1, 2010 at 7:56 am

"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?"

A fundamentally dishonest lede, Professor. The question you attempt to bury is the important one–whether the President has the right to condemn a U.S. citizen to assassination. Even if I agree, it's pretty hilarious to see you base your claim on the fact that we are "at war" with al Qaeda, after watching you lemmings insist it's not a war for the past 5 years or so when you wanted a terrorist trial in NYC, rights read in Afghanistan, etc. etc. It never fails to astound.

Professor Will Huhn October 1, 2010 at 8:12 am

larry,
Not true. From the beginning of this conflict I have taken the position that it is both a war and crime. Al Qaeda formally declared war on us in 1998. We are within our rights to kill any members of that organization whom we can find. If we capture them, then the Geneva Convention applies and they must be treated as prisoners of war. Those who have committed war crimes may be tried in military court and those who have violated Title 18 of the the U.S. Code may be tried in federal court.
You did not respond to the substance of my remarks. What do you think about the al-Aulaki case? Do you agree that it presents a political question?

Quidpro October 1, 2010 at 10:43 pm

Welcome to the cause, Professor. But the critique offered by larry still stands. Are we battling a criminal enterprise or are we fighting a war? If you cannot answer this question, why do you insist that larry opine on the "political question" issue? Are you really claiming that the Supreme Court should abstain from deciding the due process question raised by the government's attempt to assassinate an American citizen for a "crime" for which he he has never been convicted?

larry d. October 2, 2010 at 7:23 am

Classifying an action as both an act of war and a crime seems like an untenable stance that is bound to both undercut our values in regard to civil rights and undercut our effectiveness on the battlefield. As time goes on I think this administration is beginning to understand that terrorism doesn't really fall into either category and the Bush Administration's attempts to find a third categorization in regard to Gitmo prisoners, etc., weren't so far off the mark. I'm sure they're hoping Gitmo and the New York City trial issues will just go away or stay under the radar.

In regard to al-Awlaki, I agree he should be treated as any other terrorist as long as he is part of al-Qaeda. In addition, as a citizen taking part against the U.S. in an ongoing war, he should be executed for treason whether specific "crimes" can be proven in a civilian court or not.

Dan S. October 2, 2010 at 12:37 pm

RE: "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?"

No…partly based on the following from Pg. 4 of the DOJ brief:

"More broadly, the Complaint seeks judicial oversight of the President’s power to use force overseas to protect the Nation from the threat of attacks by an organization against which
the political branches have authorized the use of all necessary and appropriate force, in compliance with applicable domestic and international legal requirements, including the laws of
war. See Authorization for Use of Military Force (AUMF), Pub. L. No. 107 40, 115 Stat. 224 (2001) (Joint Resolution of Congress signed by the President)."

RE: "Are you really claiming that the Supreme Court should abstain from deciding the due process question raised by the government's attempt to assassinate an American citizen for a "crime" for which he he has never been convicted?"

IMO, Yes because in this case, the allegedly targeted human is considered a member of an enemy force who also happens to be a citizen of the USA. Quidpro, do you think the citizenship issue trumps the terrorist issue?

Quidpro October 2, 2010 at 9:25 pm

If, as the Professor holds (at least in part) that fighting terrorrism is a matter for the civil courts, then Al-Awlaki must be entitled to due process. Assassination would be the equivilant of lynching. I, however do not subscribe to that view. It is perfectly legitimate, under the rules of war, to target and kill the enemy without adhering to the requirements of civilian due process.

Robert Dequinze October 6, 2010 at 11:13 am

Unmentioned in the above discussion is the question of loss of nationality under 18 USC 1481. The burden of proof is on the government but the standard of proof is preponderance of the evidence (1481(b)) rather than the criminal law standard of beyond a reasonable doubt. The government could bring a proceeding under this law, divest him of US nationality, and treat him as an enemy alien.

Jeremy October 12, 2010 at 9:42 pm

Classification of Al-Awlaki as a civilian or a terrorist is irrelevant to this discussion. Perhaps a domestic example would be more appropriate.

Let's say Al lives in Akron, OH. Al goes on a murderous rampage. He kills a number of citizens while continuing to allude police. May the police chief order officers to employ lethal force to stop Al? Of course. If Al is attempting to allude, and not stopping him will lead to more death and destruction, than it is the police's duty to kill him. We leave life and death decisions like this to law enforcement agencies everyday. Judges aren't patrolling the streets alongside the officers telling them when or when not to shoot.

If concerns about due process do not play out in that scenario, then why should they with Al-awlaki? Quidpro, your trumped up notions of due process would leave this nation and our military vulnerable in cases where the supect doesn't surrender and continues to flee. If Al-awlaki was in custody and Obama ordered his death, then we have due process concerns. But where, like here, he flees, the executive is left with two methods for stopping him. Kill or capture.

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