Federal judge dismisses lawsuit over drone killings of 3 Americans in Yemen

A federal judge last week dismissed a lawsuit against top U.S. officials involved in the lethal drone strikes against Anwar Al-Aulaqi, his 16-year-old son Abdulrahman Al-Aulaqi, and Samir Khan in Yemen.

Anwar Al-Aulaqi’s father, Nasser, and Khan’s mother, Sarah, filed the lawsuit seeking monetary damages from former Secretary of Defense Leon Panetta, former Joint Special Operations Command [JSOC] Commander Admiral William McRaven, former JSOC Commander Lieutenant General Joseph Votel, and former CIA Director Gen. David Petraeus for violating the constitutional rights of the three American citizens killed, particularly their Fifth Amendment rights to due process.

The U.S. government has previously confirmed targeting of Anwar Al-Aulaqi, a U.S.-born Islamic cleric who allegedly served as a top leader in Al Qaeda in the Arabian Peninsula [AQAP]. Al-Aulaqi was accused of the planning of the 2009 “underwear bombing” of a Northwest Flight in Detroit by Umar Farouk Abdulmutallab. Al-Aulaqi was also linked to Major Nidal Hasan, who killed 13 people in Fort Hood in 2009.

However, Anwar Al-Aulaqi, Abdulrahman Al-Aulaqi, and Samir Khan were never charged with or tried for a terrorism-related crime when they were killed in the fall of 2011.

“The question presented here 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,” wrote U.S. District Court Judge Rosemary Collyer. “However, on these facts and under this Circuit’s precedent, the Court will grant [the government’s] motion to dismiss.”

Collyer dismissed the lawsuit, citing “special factors” that precluded Al-Aulaqi and Khan from pursuing a “Bivens” claim against federal officers “for a violation of a plaintiff’s clearly-established constitutional rights.”

Collyer pointed out that precedents set by the Fourth, Seventh, and DC Circuit courts have barred any judicial relief under “Bivens” that would interfere U.S. foreign policy, war, and national defense – responsibilities that are clearly delegated to the executive and legislative branches under the U.S. Constitution.

“Permitting [Al-Aulaqi and Khan] to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into ‘the heart of executive and military planning and deliberation’,” wrote Collyer. “Further, allowing Plaintiffs to bring a Bivens action against [government officials] would hinder the ability in the future to act decisively and without hesitation in the defense of U.S. interests.”

ACLU’s National Security Project Director Hina Shamsi called Collyer’s decision to dismiss the lawsuit “troubling”.

“The court’s view that it cannot provide a remedy for extrajudicial killings when the government claims to be at war, even far from any battlefield, is profoundly at odds with the Constitution. It is precisely when individual liberties are under such grave threats that we need the courts to act to defend them,” said Shamsi. “In holding that violations of U.S. citizens’ right to life cannot be heard in a federal courtroom, the court abdicated its constitutional role.”

But Collyer did rule that it is “plausible” that the government did deprive Anwar Al-Aulaqi of “procedural and substantive due process” rights guaranteed under the Fifth Amendment because he was “executed without charge, indictment, or prosecution.”

However, she dismissed the due process claims for Abdulrahman Al-Aulaqi and Samir Khan because they “were not targeted and their deaths were unanticipated” and that “mere negligence does not give rise to a constitutional deprivation.”

In a written statement released by the ACLU, Nasser Al-Aulaqi said he is “deeply disappointed by the judge’s decision and in the American justice system.”

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