As Expected, Judge Bates Punts on Rule of Law

I almost felt like I was reading Judge John Bates’ ruling on whether or not Valerie Plame could sue those who outed her when I read Judge Bates’ ruling dismissing the suit challenging the government’s ability to assassinate Anwar al-Awlaki with no due process.

He starts by admitting the importance of the issues at hand.

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?

But then he punts entirely on standing grounds.

Although these threshold questions of jurisdiction may seem less significant than the questions 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.”

[snip]

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.

But just for good measure, Bates says he would rule in the government’s favor on state secrets, but doesn’t need to.

So, too, defendants have established that the three procedural requirements for invocation of the state secrets privilege — (1) a formal claim of privilege (2) by an appropriate department head (3) after personal consideration — have been satisfied here. See Reynolds, 345 U.S. at 7-8; Jeppesen Dataplan, 614 F.3d at 1080; Defs.’ Mem. at 48-50.[snip]

Under the circumstances, and particularly given both the extraordinary nature of this case and the other clear grounds for resolving it, the Court will not reach defendants’ state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue.17 But in any event, because plaintiff lacks standing and his claims are non-justiciable, and because the state secrets privilege should not be invoked “more often or extensively than necessary,” see Jeppesen Dataplan, 614 F.3d at 1080, this Court will not reach defendants’ invocation of the state secrets privilege.

It was nice of Bates to save the Obama Administration the embarrassment of invoking state secrets to hide the logic for its tyranny.

All in all, a tremendous victory for unchecked executive powers!

Update: Key to Bates’ ruling is the government’s claim that al-Awlaki can just waltz up to an Embassy and make a legal request that they stop their illegal targeting of him.

In his complaint, plaintiff maintains that his son cannot bring suit on his own behalf because he is “in hiding under threat of death” and any attempt to access counsel or the courts would “expos[e] him[] to possible attack by Defendants.” Compl. ¶ 9; see also id. ¶ 26; Al-Aulaqi Decl. ¶ 10. But while Anwar Al-Aulaqi may have chosen to “hide” from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. Defendants have made clear — and indeed, both international and domestic law would require — that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be “prohibit[ed] [from] using lethal force or other violence against him in such circumstances.”

Bates makes the very helpful suggestion that if al-Awlaki wants to access the justice system, he should just email some lawyers–not admitting, of course, that the government now routinely wiretaps attorney-client correspondence.

There is no reason why — if Anwar Al-Aulaqi wanted to seek judicial relief but feared the consequences of emerging from hiding — he could not communicate with attorneys via the Internet from his current place of hiding.

But there’s a problem with this (aside from the whole abuse of attorney-client privilege). Bates has said that he would support the government’s state secrets claim, if it came to that. Which means even if al-Awlaki waltzed up the American Embassy in Yemen, he would have no way to challenging his targeting, because his suit–like that of Binyam Mohamed or Maher Arar–would be dismissed on state secrets grounds. Which gets to the whole underlying problem here. The government has refused to indict al-Awlaki, to even place their accusations into a legal form. Absent that and in light of Bates’ advance assault on state secrets, al-Awlaki would still have no legal means to challenge his targeting.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

15 replies
  1. strangely enough says:

    “more often or extensively than necessary”

    A little black [robe] humor? Almost as good as the suggestion “present himself” to the embassy. Funny guy that Judge Bates.

  2. Peterr says:

    I haven’t read the opinion, but surely Judge Bates indicated while the father does not have standing to bring this case to prevent his son from being killed under an executive order that is unreviewable by the courts, if al-Awlaki is killed, then the father would have standing to bring a case of wrongful death. The father just needs to be patient.

    Judge Bates did say that, didn’t he?

    /s

  3. DWBartoo says:

    “It was nice of Bates to save the Obama Administration the embarrassment …”

    Judicial Deference?

    Aye, it’s a bonny thing … about the law.

    DW

  4. Andrew says:

    I like the part where he suggests that because al-Awlaki believes in Islamic law and rejects Western law, he would not want the lawsuit brought on his behalf:

    [Al-Aulaqi] has decried the U.S. legal system and suggested that Muslims are not bound by Western law. As recently as April 2010, Anwar Al-Aulaqi wrote an article for the AQAP publication Inspire, in which he asserted that Muslims “should not be forced to accept rulings of courts of law that are contrary to the law of Allah.” According to Anwar Al-Aulaqi, Muslims need not adhere to the laws of the “civil state,” since “the modern civil state of the West does not guarantee Islamic rights.” In a July 2010 Inspire article, Anwar Al-Aulaqi again expressed his belief that because Western “government, political parties, the police, [and] the intelligence services . . . are part of a system within which the defamation of Islam is . . . promoted . . . the attacking of any Western target [is] legal from an Islamic viewpoint.” […]

    Such statements — which reveal a complete lack of respect for U.S. law and governmental structures as well as a belief that it is “legal” and “legitimate” to violate U.S. law — do not reflect the views of an individual who would likely want to sue to vindicate his U.S. constitutional rights in U.S. courts. After all, the substantive rights that are being asserted in this case are only provided to Anwar Al-Aulaqi by the U.S. Constitution and international law. Yet he has made clear his belief that “international treaties” do not govern Muslims, and that Muslims are not bound by any law — U.S., international, or otherwise — that conflicts with the “law of Allah.” There is, then, reason to doubt that Anwar Al-Aulaqi would even regard a ruling from this Court as binding — much less that he would want to litigate in order to obtain such a ruling. (pp. 25-26)

    Link.

  5. jiacovelli says:

    Does no one else find it ironic that on the day that Obama pretended to be powerless against the evil Republicans who held our unemployed hostage that he steamrolled a court into saying it had no power to stop the President from murdering any American located anywhere in the world without Judicial process?

    • DWBartoo says:

      No irony. The one is kabuki, “the show”. The other is bidness, “what it’s really about”, power AND money.

      The “front” and the “sting”.

      “They rode in on democratic principles and traditions …”

      … and rode off with the treasure of a civilzation, and endless, dis-spirited captives, to toy with as the mood might strike them, the new elites.

      DW

  6. timbo says:

    Excuse me. No, I mean, burn the Constitution. This guy thinks that the judicial branch can’t oversee the federal branch when it wants to extra-judicially kill someone? WTFH?!

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