Al-Aulaqi ‘Bivens’ damages suit in drone strikes dismissed

April 5

Judge Rosemary Collyer (District Court of DC) yesterday dismissed a damages lawsuit filed by families of Anwar Al-Aulaqi, his son Abdulrahman Al-Aulaqi, and Samir Khan, who were US citizens killed in US drone strikes. This was a Bivens suit for damages against individual US government officials alleged to be responsible for violations of the 4th and 5th amendments. After finding that the case is not precluded by the political question doctrine, Judge Collyer found that the 4th amendment was not at issue and focused her discussion on the 5th amendment instead; she then dismissed, with some hesitation, finding that cautionary principles attached to Bivens actions, counseling against judicial encroachment on the political branches, urged dismissal.  The 41-page ruling is here and the national security and law website Lawfare has coverage of the oral argument from last July here and discussion and links to the briefs here. A couple of observations:

1. A Bivens suit is an action for damages against federal officials in their personal capacity for violations of “clearly established Constitutional rights” and is concerned “solely with deterring individual officer’s unconstitutional acts.” Judge Collyer emphasizes that the recognized claims are far from unlimited, and since 1980, she notes (citing Malesko, 534 US 61 (2001), the “Supreme Court has ‘consistently refused to extend Bivens liability to any new context or new category of defendants’.”

2. Since a Bivens action depends (among other things) on some Constitutional violation, Judge Collyer considers the 4th and 5th amendment claims made by plaintiffs.  She rejects the 4th amendment claims as inapposite in the lethal drone strike context. Her finding that a lethal drone strike is not a “seizure” under the 4th amendment might strike some readers as peculiar because they want to characterize a lethal strike with a missile as a “seizure” of the most radical kind. But I think the opinion is clearly right and not surprising in 4th amendment jurisprudence. As the opinion says:

Plaintiffs further admit the inapplicability of Fourth Amendment principles by asserting that the United States killed the three men with missiles from unmanned drones. Unmanned drones are functionally incapable of “seizing” a person; they are designed to kill, not capture. As the decedents were not “seized,” Plaintiffs have not stated a Fourth Amendment claim.

An important note is that Judge Collyer is not saying that because a drone is “unmanned,” it cannot be used by its operators to violate the Constitution. The feature about drones is not that they cannot be used to violate Constitutional rights; it is that as an aircraft and an unmanned aircraft, it has no capacity to “seize” rather than kill. The same would be true of a manned jet aircraft armed with a missile; “unmanned” as such is not the issue.

3. Although Judge Collyer does find plausible grounds for 5th amendment claims by the intended targets of US, leaving aside anything else, she finds that the accidental, unintended victims (Samir Khan or Abdulrahman Al-Aulaqi) could not have a 5th amendment claim. I think this is right.

Mr. Khan and Abdulrahman Al-Aulaqi were not targeted and their deaths were unanticipated. In fact, Plaintiffs’ due process claim on behalf of Mr. Khan and Abdulrahman Al-Aulaqi asserts only negligence, i.e., that the Government should have taken better care to avoid harming them as bystanders. See Compl. ¶ 5 (“If the Defendants were targeting others, they had an obligation under the Constitution and international human rights law to take measures to prevent harm to Samir Khan, Abdulrahman Al-Aulaqi, and other bystanders.”).

Mere negligence does not give rise to a constitutional deprivation … (“the due process clause, whether procedural or substantive, is not triggered by the lack of due care of an official causing unintended injury to life, liberty, or property”). “[T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Cnty. of Sacramento, 523 U.S. at 849. Accordingly, the Fifth Amendment claims asserted on behalf of Mr. Khan and Abdulrahman Al- Aulaqi will be dismissed for failure to state a claim.  [citations deleted]

4. What about the political question doctrine? It stands analytically at the outset, something urged by the government that would remove any need to discuss the rest of the legal claims. An earlier lawsuit over the Anwar Al-Aulaqi’s targeting had been dismissed on those grounds. Judge Collyer acknowledges that her opinion breaks from that opinion by Judge John Bates in Al-Aulaqi v Obama, but nonetheless holds that the political question doctrine does not bar the lawsuit. I believe Judge Bates has the better view; in any case, Judge Collyer’s opinion largely tracks the analysis of U.S. Citizens v. Reagan859 F.2d 929, 935 (D.C. Cir. 1988):

In U.S. Citizens v. Reagan, a group of U.S. citizens living in Nicaragua advanced Fifth Amendment claims challenging U.S. support of military actions by the so-called “Contras.” They argued that funding the Contras deprived them of liberty and property without due process of law because they were threatened by the war in Nicaragua and they were intended targets of the Contras. 859 F.2d at 935. The D.C. Circuit determined that these due process claims were “serious allegations and not ones to be dismissed as nonjusticiable” because “[t]he Executive’s power to conduct foreign relations free from the unwarranted supervision of the Judiciary cannot give the Executive carte blanche to trample the most fundamental liberty and property rights of this country’s citizenry.” Id. (quoting Ramirez de Arellano, 745 F.2d at 1515).

The same reasoning applies here. The powers granted to the Executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a U.S. citizen of his life without due process and without any judicial review.

5. As a result of this, Judge Collyer’s opinion finds that the “political question doctrine does not bar its review of Plaintiffs’ Complaint and that Plaintiffs have stated a claim that Defendants violated Anwar Al-Aulaqi’s due process rights. Nonetheless, the Court finds no available remedy under U.S. law for this claim.” This brings the opinion to the specific doctrines attached to a Bivens action.  The opinion makes a thorough review of cases and the “special factors” under Bivens counseling against a judicial role in national security and armed conflict situations abroad. Reluctantly, I think (though I could be wrong), Judge Collyer concludes that under binding case law, the case can’t go forward:

Defendants must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the President and with the concurrence of Congress. They cannot be held personally responsible in monetary damages for conducting war. Under binding D.C. Circuit precedent, this Court finds that special factors preclude the implication of a Bivens remedy here.  

 

Kenneth Anderson teaches law at Washington College of Law, American University; he is also a non-resident senior fellow of the Brookings Institution, member of the Hoover Institution Task Force on National Security and Law, and senior fellow of the Rift Valley Institute.
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