Al-Aulaqi v. Panetta, Civil Action No. 12–1192 (RMC)
| Citation | 35 F.Supp.3d 56 |
| Decision Date | 04 April 2014 |
| Docket Number | Civil Action No. 12–1192 (RMC) |
| Parties | Nasser Al–Aulaqi, as personal representative of the Estates of Anwar Al–Aulaqi and Abdulrahman Al–Aulaqi, et al., Plaintiffs, v. Leon C. Panetta, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Nasser Al–Aulaqi, as personal representative of the Estates of Anwar Al–Aulaqi and Abdulrahman Al–Aulaqi, et al., Plaintiffs,
v.
Leon C. Panetta, et al., Defendants.
Civil Action No. 12–1192 (RMC)
United States District Court, District of Columbia.
Signed April 4, 2014
Motion granted.
See also 727 F.Supp.2d 1.
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Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, Washington, DC, Brett Max Kaufman, Hina Shamsi, Jameel Jaffer, American Civil Liberties Union Foundation, Maria C. Lahood, Pardiss Kebriaei, New York, NY, for Plaintiffs.
Paul Elias Werner, U.S. Department of Justice, Washington, DC, for Defendants.
ROSEMARY M. COLLYER United States District Judge
Because Anwar Al–Aulaqi was a terrorist leader of al-Qa'ida in the Arabian Peninsula, the United States intentionally targeted and killed him with a drone strike in Yemen on September 30, 2011. The missile also killed Samir Khan, who was riding in the same vehicle. Both men were U.S. citizens. Two weeks later, on October 14, 2014, the United States killed additional individuals in Yemen with a missile from another drone. While this second drone
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targeted someone else, among those it killed was Abdulrahman Al–Aulaqi, Anwar Al–Aulaqi's teenage son. Nasser Al–Aulaqi, father of Anwar and grandfather of Abdulrahman, and Sarah Khan, mother of Samir, sue various U.S. officials in their personal capacities. Plaintiffs claim, inter alia, that these officials violated the Fifth Amendment rights of the decedents by authorizing the drone strikes. The question presented is whether federal officials can be held personally liable for their roles in drone strikes abroad that target and kill U.S. citizens. The question raises fundamental issues regarding constitutional principles, and it is not easy to answer. However, on these facts and under this Circuit's precedent, the Court will grant Defendants' motion to dismiss.
President Barack Obama and Attorney General Eric Holder, Jr., have admitted that the United States targeted and killed Anwar Al–Aulaqi, a terrorist who was a key leader of al-Qa'ida in the Arabian Peninsula (AQAP). See Def. Resp. to May 22, 2013 Order [Dkt. 26], Ex. 1 [Dkt. 26–1], Letter from AG Holder (May 22, 2013) (AG Letter) at 1–2; see also id., Ex. 2 [Dkt. 26–2], Remarks by President Obama at the National Defense University (May 23, 2013) (President Obama Speech) at 9–10. They also have acknowledged that Mr. Khan and Abdulrahman Al–Aulaqi were killed as “bystanders” by U.S. drones that targeted someone else. AG Letter at 2.
More than a year before Anwar Al–Aulaqi was killed, the U.S. Joint Special Operations Command (JSOC) 1 had placed him on a military “kill list” and tried unsuccessfully to kill him. Compl. [Dkt. 3] ¶¶ 2, 23 (citing Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, Wash. Post, Jan. 27, 2010). The Office of Legal Counsel within the U.S. Department of Justice allegedly completed a memorandum that provided legal justification for killing Anwar Al–Aulaqi overseas. See id. ¶ 25 (citing Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. Times, Oct. 8, 2011).2 Government officials told reporters that Anwar Al–Aulaqi had “cast his lot” with terrorist groups, encouraged others to engage in terrorist activity, and “played a key role in setting the strategic direction” for AQAP. See id. ¶ 26. Leon Panetta, former Director of the Central Intelligence Agency (CIA),3 and Admiral William H. McRaven, former Commander of JSOC,4 allegedly participated in the decision to add Anwar Al–Aulaqi to the list. Id. ¶ 24. The U.S. Government never publicly indicted or prosecuted Anwar Al–Aulaqi for any crime. Id. ¶ 26.
Upon hearing rumors that the United States had placed Anwar Al–Aulaqi on a kill list, Nasser Al–Aulaqi filed suit on behalf of his son against the President, CIA Director, and Secretary of Defense in their official capacities. See
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Al–Aulaqi v. Obama, Civ. No. 10–1469, 2010 WL 3478666 (D.D.C.), Compl. filed Aug. 30, 2010. That suit, captioned Al–Aulaqi v. Obama, sought to enjoin the Government from carrying out the planned killing of Anwar Al–Aulaqi unless “he presented a concrete, specific, and imminent threat to life, and that there were no reasonably available measures short of lethal force that could be expected to address that threat.” Compl. [Dkt. 3] ¶ 27 (describing prior suit). The United States moved to dismiss the complaint and invoked the “military and state secrets” privilege.5 See Al–Aulaqi v. Obama, Civ. No. 10–1469, 2010 WL 3863135, Mot. to Dismiss (filed Sept. 25, 2010). In support of the privilege, the Government submitted both unclassified and classified declarations from James Clapper, Director of National Intelligence; Robert Gates, then-Secretary of Defense; and Leon Panetta, then-Director of the CIA. See id., Mot. to Dismiss, Ex. 1 (Clapper Decl.), Ex. 4 (Gates Decl.), & Ex. 5 (Panetta Decl.). While invoking the state secrets privilege, the Government advised the district court that it need not and should not reach the privilege issue because the case could be resolved on other grounds. Agreeing with the Government, Judge John Bates did not address the issue of state secrets and instead resolved the case on different legal principles. Al–Aulaqi v. Obama, 727 F.Supp.2d 1, 52–54 (D.D.C.2010). Judge Bates dismissed the suit, finding that Nasser Al–Aulaqi did not have standing to assert his son's constitutional rights, see id. at 14–35, and that at least some of the issues raised were non justiciable political questions, see id. at 44–52. Nasser Al–Aulaqi did not appeal.
On the morning of September 30, 2011, the plan to kill Anwar Al–Aulaqi came to fruition. On that day, Anwar Al–Aulaqi and Samir Khan were in a vehicle in the Yemeni province of al-Jawf, approximately ninety miles northeast of Sana'a. Compl. ¶ 3 1. Missiles from one or more unmanned U.S. drones hit the vehicle and destroyed it, killing them and at least two others. Plaintiffs allege that Defendants had been surveilling Anwar Al–Aulaqi for weeks. Id. ¶31 (citing media reports). According to the Complaint, the surveillance and the strike were carried out by CIA and JSOC, after Defendants personally authorized and directed the strike. Id. ¶¶ 12–15, 32.
Abdulrahman Al–Aulaqi was killed by a separate U.S. drone strike two weeks later. He was in an open-air café near the town of Azzan, in the southern Yemeni province of Shabwa, on October 14, 2011, when a U.S. drone fired a missile at a person at or near the restaurant. Id. ¶37. The drone allegedly targeted Ibraham Al–Banna, an Egyptian national. Id. While it was reported that Mr. Al–Banna was not killed, the strike did kill at least seven people, including Abdulrahman Al–Aulaqi. Id.
B. Designation of Anwar Al–Aulaqi as a TerroristMore than a year before the September 30, 2011 drone strike against Anwar Al–Aulaqi, the U.S. Department of the Treasury had designated him as a Specially
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Designated Global Terrorist, expressly finding him to be a key leader of AQAP. See Designation of Anwar Al–Aulaqi Pursuant to Executive Order 13224 and Global Terrorism Sanctions Regulations, 75 Fed.Reg. 43,233–01 (July 23, 2010) (publically announced July 12, 2010). Executive Order 13224,6 issued by President George W. Bush on September 23, 2001, declared a national emergency for the purpose of addressing grave acts of terrorism and threats of terrorism. The Executive Order authorized the imposition of economic sanctions on named persons and entities who have committed, pose a significant risk of committing, or support acts of terrorism. To implement the Order, the Secretary of the Treasury promulgated Global Terrorism Sanctions Regulations, see 31 C.F.R. Part 594, and delegated his authority over the Sanctions Regulations to the Director of the Office of Foreign Assets Control (OFAC), see 31 C.F.R. § 594.802.
Pursuant to the Executive Order and the Sanctions Regulations, on July 12, 2010, the Director of OFAC named Anwar Al–Aulaqi as a key leader of AQAP and added his name to the list of those subject to economic sanctions. In consultation with the Departments of State, Homeland Security, Justice, and other relevant agencies, OFAC designated Anwar Al–Aulaqi “as an individual whose property and interests in property are blocked” because he was “acting for or on behalf of [AQAP]” and he was “providing financial, material or technological support for, or other services to or in support of, acts of terrorism....” 75 Fed.Reg. at 43,233–34; cf. 31 C.F.R. § 594.201 (providing that Treasury, in consultation with other agencies, can block access to property of persons determined to assist in terrorism or provide support to terrorists).
Specifically, OFAC determined that Anwar Al–Aulaqi was a key leader in AQAP who had been, and continued to be, involved in recruiting, training, and preparing terrorists for attacks on U.S. targets as follows:
ANWAR AL–AULAQI, a dual U.S.-Yemeni citizen, is a leader of al-Qa'ida in the Arab Peninsula (AQAP), a Yemen-based terrorist group 7 that has claimed responsibility for numerous terrorist acts 8 against Saudi, Korean, Yemeni, and U.S. targets since its inception in January 2009. ANWAR AL–AULAQI has pledged an oath of loyalty to AQAP
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emir, Nasir al-Wahishi, and is playing a key role in setting the strategic direction for AQAP. ANWAR AL–AULAQI has also recruited individuals to join AQAP, facilitated training at camps in Yemen in support of acts of terrorism, and helped focus AQAP's attention on planning attacks on U.S. interests.
Since late 2009, ANWAR AL–AULAQI has taken on an increasingly operational role in the group, including preparing Umar Farouk Abdulmutallab, who attempted to detonate an explosive device aboard a Northwest Airlines flight from...
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