Litigating the Long War on Terror: The Role of Al-Aulaqi v. Obama
Loyola University Chicago International Law Review, Vol. 159, 2011
18 Pages Posted: 14 Mar 2012 Last revised: 4 Apr 2012
Date Written: March 12, 2012
The U.S. government’s decision to list an American citizen on a kill list raises an important series of questions. At the time the government allegedly placed Anwar al-Aulaqi on a kill list, remarkably little was known about the procedures for listing and reviewing placements of individuals. How and under what authority did the government target Anwar al-Aulaqi? What legal standards guide the decision to list? Who makes the initial decisions about listing? What evidentiary standards do they use to determine if the legal standards are satisfied? Who reviews the determinations and how frequently? What opportunity, if any, exists for the listing individual to challenge his placement? Writ large, the pressing issue is whether the executive branch possesses unreviewable authority to order the targeted killing of an American that the President deems to be a threat to the nation.
The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) filed suit to find out the answers to the questions raised above. Although the actual case has drawn to a close, these questions remain important ones. Rather than attempt to resolve the numerous legal issues raised by the al-Aulaqi litigation, this short piece seeks to explain why the ACLU and CCR brought this lawsuit and then ultimately abandoned it. In short, al-Aulaqi’s case demonstrates both the potential for and the limitations of litigation as a strategy to curb executive authority during the so-called long war on terror. Even though Judge Bates rightly noted that al-Aulaqi’s case is a “unique and extraordinary” one, many issues raised by the litigation speak to more run of the mill terrorism cases. This article begins by identifying the ACLU and CCR’s successful challenge of a specific procedural burden, effectively ensuring greater access to lawyers for many of those designated as terrorists. In contrast, Part II of this article notes the ACLU and CCR’s general failures in accomplishing their immediate litigation goals. Their efforts to expand the standing doctrine and narrow the application of sovereign immunity, state secrets, and political question doctrines were largely futile. Yet, Part III suggests the ACLU and CCR’s real goals may have been the lawsuit’s extra-legal consequences and contributions. While they were unable to obtain a judicial review of the executive branch’s behavior, this part documents how they leveraged the litigation to provoke and influence a public debate over certain aspects of the war on terror. The lawsuit allowed the ACLU and CCR to raise and initiate the framework for legal and policy questions about the targeting of American citizens and the government has responded through leaks and speeches. In the wake of al-Aulaqi’s death, this framework is bearing some limited fruit as the push for greater transparency over legal standards for and reviewability of targeting decisions increases in strength and the demand for a rethinking of the policy wisdom of pursuing a targeting policy grows more fervent.
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