Federal Judge says Al-Alwaki's Old Man Can't Go to Court on His behalf

Terrorist AL-Alwaki --- hiding out in Yemen and connected to many recent terrorist attempts in the US in 2009-2010 --- is on the CIA's hit list. Recently, his father, backed by the ACLU, went into federal court in DC to try to get an order preventing Uncle Sam from carrying out the "Contract" on his kid. The federal judge dismissed the case. Here's some of what His Honor wrote:

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NASSER AL-AULAQI, on his own behalf
and as next friend of Anwar Al-Aulaqi,
Plaintiff,
v. Civil Action No. 10-1469 (JDB)
BARACK H. OBAMA, in his official
capacity as President of the United States;
ROBERT M. GATES, in his official
capacity as Secretary of Defense; and
LEON E. PANETTA, in his official
capacity as Director of the Central
Intelligence Agency,
Defendants.

MEMORANDUM OPINION

On August 30, 2010, plaintiff Nasser Al-Aulaqi ("plaintiff") filed this action, claiming that the President, the Secretary of Defense, and the Director of the CIA (collectively,
"defendants") have unlawfully authorized the targeted killing of plaintiff's son, Anwar Al-Aulaqi,a dual U.S.-Yemeni citizen currently hiding in Yemen who has alleged ties to al Qaeda in the Arabian Peninsula ("AQAP"). Plaintiff seeks an injunction prohibiting defendants from intentionally killing Anwar Al-Aulaqi "unless he presents a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat." See Compl., Prayer for Relief (c). Defendants
have responded with a motion to dismiss plaintiff's complaint on five threshold grounds: standing, the political question doctrine, the Court's exercise of its "equitable discretion," the absence of a cause of action under the Alien Tort Statute ("ATS"), and the state secrets privilege.

This is a unique and extraordinary case. Both the threshold and merits issues present
fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure. Leading Supreme Court decisions from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), through Justice Jackson's celebrated concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), to the more recent cases dealing with Guantanamo detainees have been invoked to guide this Court's deliberations. Vital considerations of national security and of military and foreign affairs (and hence potentially of state secrets) are at play.

Stark, and perplexing, questions readily come to mind, including the following: How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen --himself or through another -- use the U.S. judicial system to vindicate his constitutional rights
while simultaneously evading U.S. law enforcement authorities, calling for "jihad against the West," and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the
courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the "target" of contemplated military action the precise standards under which it will take that military action? And how does
the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

These and other legal and policy questions posed by this case are controversial and of great public interest. "Unfortunately, however, no matter how interesting and no matter how important this case may be . . . we cannot address it unless we have jurisdiction." United States v. White, 743 F.2d 488, 492 (7th Cir. 1984). Before reaching the merits of plaintiff's claims, then, this Court must decide whether plaintiff is the proper person to bring the constitutional and
statutory challenges he asserts, and whether plaintiff's challenges, as framed, state claims within the ambit of the Judiciary to resolve. These jurisdictional issues pose "distinct and separatelimitation[s], so that either the absence of standing or the presence of a political question suffices
to prevent the power of the federal judiciary from being invoked by the complaining party." Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) (internal citations omitted). Although these threshold questions of jurisdiction may seem less significant than thequestions posed by the merits of plaintiff's claims, "[m]uch more than legal niceties are at stake here" -- the "constitutional elements of jurisdiction are an essential ingredient of separation and
equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998). Here, the jurisdictional hurdles that plaintiff must surmount are both complex and at the heart of the intriguing nature of this case. But "[a] court without jurisdiction is a court without power, no matter how appealing the case for exceptions may be,"
Bailey v. Sharp, 782 F.2d 1366, 1373 (7th Cir. 1986) (Easterbrook, J., concurring), and hence it is these threshold obstacles to reaching the merits of plaintiff's constitutional and statutory challenges that must be the initial focus of this Court's attention. Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of
the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.

The judge is right that this is "a unique and extraordinary case." It goes beyond the detainee and the Padilla cases. Here the US proposes to assassinate a US citizen. Among the important legal issues:

1. Is the current interpretation of the Constitution,which grants US citizenship to anybody who happens to be born on US soil, a correct and desirable interpretation?
This interpretation has spawned, quite literally, a whole "birth-tourism" industry in which expectant mothers time their US vacations to give birth in
the US and thus gain dual citizenship for their kids.



2. Can a US citizen --- even such a whiffy US citizen --- be executed --- even in time of war and even outside the US --- without according him the rights of the accused,a s outlined in the Bill of Rights?



3. If the answer to (2) is even possibly "no," then should a federal court have jurisdiction over the case? The federal judge here thinks not. Yet he recognizes how high are the stakes.