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
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)
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 Al-Aulaqi v.
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. ¶ 31. 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.
More 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
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:
75 Fed.Reg. 43,233-01; see also id. at 43,234 (Anwar Al-Aulaqi was also known as Anwar Nasser Abdulla Al-Awlaki or Al-Awlaqi). Thus, the determination that Anwar Al-Aulaqi was an AQAP leader was based, at least in part, on the training and instruction he provided to Umar Farouk Abdulmutallab, the "Christmas Day bomber."
In lieu of trial, Umar Farouk Abdulmutallab voluntarily pled guilty to Conspiracy to Commit an Act of Terrorism Transcending National Boundaries in violation of 18 U.S.C. § 2332b(a)(1) & (2) as well as other offenses. See United States v. Abdulmutallab, Crim. No. 10-CR-20005-1 (E.D.Mich.), Tr. of Plea Hr'g (Oct. 12, 2011). He was sentenced to life in prison. See id., Judgment (Feb. 16, 2012). On appeal, the Sixth Circuit upheld his plea and sentence. United States v. Abdulmutallab, 739 F.3d 891 (6th Cir.2014).
When pleading guilty, Mr. Abdulmutallab stated that he conspired with Anwar Al-Aulaqi to carry an explosive device onto the aircraft, thereby attempting to kill those onboard and wreck the plane, as an act of jihad against the United States. Tr. of Plea Hr'g (Oct. 12, 2011) at 26. Mr. Abdulmutallab was debriefed by FBI agents at various times between January and April 2010; he specifically named Anwar Al-Aulaqi as the AQAP leader who approved the Christmas Day attack, and he described in detail the nature of Anwar Al-Aulaqi's participation in the attack. See United States v. Abdulmutallab, Crim. No. 10-CR-20005-1 (E.D.Mich.), Gov't Sentencing Mem., Supp. Factual Appx. (Sentencing Mem.) at 12-14. Mr. Abdulmutallab had been a follower of the online teachings of Anwar Al-Aulaqi, and he travelled from his home in Dubai to Yemen to meet with Anwar Al-Aulaqi. Id. at 12; see Abdulmutallab, 739 F.3d at 902 ("Abdulmutallab studied the teachings of the radical Imam Anwar Awlaki, which prompted his decision to travel to Yemen for the purpose of meeting Awlaki."). During a three-day stay at Anwar Al-Aulaqi's house, Mr. Abdulmutallab discussed martyrdom and jihad with Anwar Al-Aulaqi. Sentencing Mem. at 13. At the end of the meeting, Anwar Al-Aulaqi "accepted" Mr. Abdulmutallab for a "martyrdom mission." Id. Subsequently, AQAP bomb maker Ibrahim Al Asiri discussed a plan for Mr. Abdulmutallab's
Media sources reported ties between Anwar Al-Aulaqi and Nidal Malik Hasan, the U.S. Army Major recently convicted of murdering thirteen people in November 2009 at Fort Hood, Texas.
After Anwar Al-Aulaqi was killed, Attorney General Holder wrote to Senator Patrick Leahy that "[i]t was al-Aulaqi's actions — and, in particular, his direct personal involvement in the continued planning and execution of terrorist attacks against the U.S. homeland — that ... led the United States to take action." AG Letter at 3. The Attorney General described Anwar Al-Aulaqi's involvement in the Christmas Day attack, and asserted the position of the Executive Branch that Anwar Al-Aulaqi was a continuing and imminent threat to the United States when he was killed and that it had not been feasible to capture him:
Id. (emphasis in original);
In this suit, Nasser Al-Aulaqi sues as the personal representative of his son and grandson's estates, and Sarah Khan sues as the personal representative of her son's estate.
Nasser Al-Aulaqi's son, Anwar Al-Aulaqi, was born in 1971 in New Mexico. Id. ¶ 22. He moved to Yemen with his parents in 1978, but later returned to the United States to attend college at Colorado State University. He obtained a Master's Degree from San Diego State University and enrolled in a Ph.D. program at George Washington University, which he attended through December 2001. Anwar Al-Aulaqi married in the United States and had three children while he was living here, including Abdulrahman, who was born in Denver, Colorado, on August 26, 1995. Anwar Al-Aulaqi and his family left the United States in 2002 or 2003 and eventually moved to Yemen.
At the time of his death, Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen, living in Yemen. Clapper Decl. ¶ 13; see Al-Aulaqi v. Obama, 727 F.Supp.2d at 10. When he died, Abdulrahman Al-Aulaqi was a 16-year-old high school student residing with his family in Sana'a, Yemen. Compl. ¶ 36.
Samir Khan also was a U.S. citizen at the time of his death. Id. ¶ 28. His mother, Sarah Khan, has lived in the United States since 1992 with her husband and children; she is an American citizen. Id. ¶¶ 11, 28. Samir Khan was born in 1985 in an unidentified country and became a U.S. citizen in 1998. Id. ¶ 28. In 2003, he graduated from high school in Long Island, New York, after which he moved to North Carolina, where he attended a community college and worked. Samir Khan left the United States for Yemen in 2009. Id.
Defendants are former Secretary of Defense Panetta; former JSOC Commander Admiral McRaven; JSOC Commander Lieutenant General Joseph Votel;
Plaintiffs seek to hold Defendants individually liable for monetary damages for violating the rights of the deceased under the U.S. Constitution. Id., Prayer for Relief. They allege that Defendants violated (1) the Fifth Amendments right of the deceased to substantive and procedural due process; (2) the Fourth Amendment right of the deceased to be free from unreasonable seizures; and (3) the right of Anwar Al-Aulaqi under the Constitution's Bill of Attainder Clause. Id. ¶¶ 41-43. Defendants have moved to dismiss, arguing that (1) the Court lacks jurisdiction because the Complaint raises a non-justiciable political question; (2) "special factors" preclude implying a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); and (3) Defendants are entitled to qualified immunity. See Mot. to Dismiss [Dkt. 18]; Reply [Dkt. 23]. Plaintiffs oppose. See Opp'n [Dkt. 21]. As explained below, the motion to dismiss will be granted because special factors counsel hesitation in implying a Bivens remedy in these circumstances.
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or any portion thereof, for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is both a statutory requirement and an Article III requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (noting that federal courts are courts of limited jurisdiction and "[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction") (internal citations omitted).
When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004). Nevertheless, "the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions." Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C.2006). A court may consider materials outside the pleadings to determine its jurisdiction. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C.Cir. 2005); Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir. 2003). A court has "broad discretion to consider relevant and competent evidence" to resolve factual issues raised by a Rule 12(b)(1) motion. Finca Santa Elena, Inc. v. U.S. Army Corps of Engineers, 873 F.Supp.2d 363, 368 (D.D.C.2012) (citing 5B Charles Wright & Arthur Miller, Fed. Prac. & Pro., Civil § 1350 (3d ed.2004)); see also Macharia v. United States, 238 F.Supp.2d 13, 20 (D.D.C.2002), aff'd, 334 F.3d 61 (2003) (in reviewing a factual challenge
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6). A complaint must be sufficient "to give a defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds for his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Id. at 570, 127 S.Ct. 1955. A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
"Unlike motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), factual challenges are not permitted under 12(b)(6) and the Court may only consider the facts alleged in the complaint, any documents attached as exhibits thereto, and matters subject to judicial notice in weighing the merits of the motion." Kursar v. Transp. Sec. Admin., 581 F.Supp.2d 7, 14 (D.D.C.2008), aff'd, 442 Fed.Appx. 565 (D.C.Cir.2011). When a document is referred to in a complaint and is central to a plaintiff's claim, the court may consider the document without converting the motion to dismiss into one for summary judgment. Vanover v. Hantman, 77 F.Supp.2d 91, 98 (D.D.C.1999).
Federal Rule of Evidence 201 provides that a court may judicially notice a fact that is not subject to "reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). A court may take judicial notice of facts contained in public records of other proceedings, see Covad Communications Co. v. Bell Atlantic Co., 407 F.3d 1220, 1222 (D.C.Cir.2005), and of historical, political, or statistical facts, and any other facts that are verifiable with certainty, see Mintz v. FDIC, 729 F.Supp.2d 276, 278 n. 5 (D.D.C.2010). Also, a court generally may take judicial notice of materials published in the Federal Register. Banner Health v. Sebelins, 797 F.Supp.2d 97, 112 (D.C.Cir.2011); 44 U.S.C. § 1507 ("The contents of the Federal Register shall be judicially noticed...."). Further, judicial notice may be taken of public records and government documents available from reliable sources. Hamilton v. Paulson, 542 F.Supp.2d 37, 52 n. 15 (D.D.C.2008), rev'd on other grounds, 666 F.3d 1344 (D.C.Cir. 2012); see D.C. Fed'n of Civic Ass'ns v. Volpe, 459 F.2d 1231, 1257-58 (D.C.Cir. 1971) (noting that congressional documents and speeches made on the floor of the House of Representatives are part of the public record); Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 905
Because the Court may take judicial notice of facts contained in the public records of other proceedings, see Covad, 407 F.3d at 1222, the Court takes judicial notice of the facts regarding Anwar Al-Aulaqi's involvement in the Christmas Day attack. See Sentencing Mem. at 12-14; Tr. of Plea Hr'g (Oct. 12, 2011) at 26. The Court also takes judicial notice of the fact that in a May 2010 video interview, Anwar Al-Aulaqi called for "jihad against America" and declared that he would "never surrender." Al-Aulaqi v. Obama, 727 F.Supp.2d at 10-11; Clapper Decl. ¶ 16. Judicial notice is taken, too, of the Treasury publication in the Federal Register, i.e., the designation of Anwar Al-Aulaqi as a Specially Designated Global Terrorist due to the fact that he was a key leader of AQAP. See 75 Fed.Reg. 43,233-01.
Plaintiffs urge the Court to refrain from taking judicial notice of "Executive Branch assertions that are subject to reasonable dispute." See Opp'n at 6-7; Pl. Reply to Court's Order [Dkt. 28] at 2-4. These assertions include: (1) that the United States is engaged in armed conflict with AQAP and that AQAP is part of or associated with al-Qa'ida, see Opp'n at 6 n.5; (2) that Anwar Al-Aulaqi posed a continuing, imminent threat to the United States; (3) that it was not feasible to capture him; and (4) that the decision to target him with lethal force underwent rigorous interagency legal and policy review and had the prior approval of congressional oversight committees. See AG Letter at 3-4. Defendants concede the point by stating that "[a]ny additional specific facts included in the AG Letter ... that either are not alleged in the complaint or might be contrary to Plaintiffs' well-pled allegations would not technically be before the Court...." Def. Resp. to Court Order [Dkt. 26] at 2 n.3. For the purpose of considering Defendants' motion, the Court will take judicial notice of the Treasury designation, AG Holder's letter, President Obama's speech, and Director Leiter's statement only as representations of the Government's position that Anwar Al-Aulaqi was a terrorist leader of AQAP, that AQAP is associated with al-Qa'ida, and that Anwar Al-Aulaqi posed a continuing threat to the United States. See Simpson, 362 F.Supp.2d at 178 n. 5.
This case presents fundamental questions regarding the nature of a citizen's right to due process under the Fifth Amendment: it is poised at the intersection of the federal Government's separation of powers into three co-equal Branches.
Defendants move to dismiss for lack of jurisdiction pursuant to the political question doctrine, urging the Court to find that there is no judicial role here. "The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or
However, "[i]t is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), and the political question doctrine's "shifting contours and uncertain underpinnings" make it "susceptible to indiscriminate and overbroad application to claims properly before the federal courts," Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514 (D.C.Cir.1984) (en banc), vacated on other grounds, 471 U.S. 1113, 105 S.Ct. 2353, 86 L.Ed.2d 255 (1985). "The political question doctrine has occupied a more limited place in the Supreme Court's jurisprudence than is sometimes assumed. The Court has relied on the doctrine only twice in the last 50 years." El-Shifa, Pharm. Indus. Co. v. United States, 607 F.3d 836, 856 (D.C.Cir.2010) (en banc) (Kavanaugh, J., concurring in judgment).
"[T]he Supreme Court has repeatedly found that claims based on [due process] rights are justiciable, even if they implicate foreign policy decisions." Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 935 (D.C.Cir.1988) (citing Regan v. Wald, 468 U.S. 222, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984); Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981)). 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. See U.S. Citizens v. Reagan, 859 F.2d at 935. The interest in avoiding the erroneous deprivation of one's life is uniquely compelling. See Ake v. Oklahoma, 470 U.S. 68, 78, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) ("The private interest in the accuracy of a criminal proceedings that places an individual's life or liberty at risk is almost uniquely compelling."); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ("[T]his qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed."). The Bill of Rights was passed to protect individuals from an over-reaching government, and this Court cannot refuse to provide an independent legal analysis.
In analyzing a Bivens claim, a Court must first "identify the exact contours of the underlying right said to have been violated" and determine "whether the plaintiff has alleged a deprivation of a constitutional right at all." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Plaintiffs contend that Defendants violated the Fourth and Fifth Amendments. The Fourth Amendment reads:
U.S. Const. amend. IV. The Fifth Amendment provides:
U.S. Const. amend. V. United States citizens are entitled to constitutional protections even when abroad. Reid v. Covert, 354 U.S. 1, 5-9, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion). The fact that Anwar Al-Aulaqi, Samir Khan and Abdulrahman Al-Aulaqi were in Yemen at the time they were killed did not alter these basic legal rights under the U.S. Constitution.
Plaintiffs allege that Defendants violated the decedents' Fourth Amendment right to be free from unreasonable seizure "by authorizing and directing their subordinates to use lethal force" against them. Compl. ¶ 42. In Fourth Amendment parlance, Plaintiffs assert a claim of excessive force. In addressing an excessive force claim, "analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized `excessive force' standard." Id. For example, the plaintiff in Graham claimed that an officer used excessive force during an investigatory stop in violation of his right to substantive due process under the Fourteenth Amendment. Because the case related to a "seizure," which is specifically addressed by the Fourth Amendment, the Supreme Court analyzed his claim under the Fourth Amendment and not under the Fourteenth Amendment as alleged.
In this case, the opposite is true — the Court must analyze Plaintiffs' claims under the rubric of the Fifth Amendment and not the Fourth Amendment. While Plaintiffs assert that Defendants violated the Fourth Amendment right to be free from unreasonable seizure, in fact there was no "seizure" of Anwar Al-Aulaqi, Samir Khan or Abdulrahman Al-Aulaqi as that term is defined in Fourth Amendment jurisprudence. "Only when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court has further clarified that a "seizure" occurs when an officer brings a person "within the officer's control," either by application of force, even if slight, or by the person's submission to a law enforcement officer's show of authority. California v. Hodari D., 499 U.S. 621, 624-626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); accord United
Plaintiffs do not allege that Defendants "seized" the decedents. They do not allege that Defendants restrained decedents' liberty or that Defendants took the decedents into their control through an application of force or show of authority. Plaintiffs impliedly concede this point when they complain that Defendants should have captured (i.e., seized) Anwar Al-Aulaqi instead of killing him. In fact, Plaintiffs do not even allege that Defendants intended to seize Mr. Khan and Abdulrahman Al-Aulaqi, since Mr. Khan and Abdulrahman Al-Aulaqi were killed by unmanned U.S. drones that targeted another person. 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.
The due process clause of the Fifth Amendment was intended to secure the individual from arbitrary exercises of governmental power. Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). It encompasses both substantive and procedural components. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). To state a procedural due process claim, a plaintiff must establish that he had a protected interest in life, liberty or property, see Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), and that government officials knowingly, and not merely negligently, deprived him of that interest, see Daniels, 474 U.S. at 335-36, 106 S.Ct. 662, without notice and an opportunity to be heard "at a meaningful time and in a meaningful manner," see Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
To state a substantive due process claim, a plaintiff must assert that a government official was so "deliberately indifferent" to his constitutional rights that the official's conduct "shocks the conscience." Estate of Phillips v. Dist. of Columbia, 455 F.3d 397, 403 (D.C.Cir. 2006); see also Cnty. of Sacramento, 523 U.S. at 847 n. 8, 118 S.Ct. 1708 (government conduct must have been "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience"). Conduct "shocks the conscience" when it was "intended to injure in some way." Cnty. of Sacramento, 523 U.S. at 849, 118 S.Ct. 1708; see also Silverman v. Barry, 845 F.2d 1072, 1080 (D.C.Cir.1988) (government conduct that was "gravely unfair," such as "a deliberate flouting of the law that trammels significant
Plaintiffs have not stated a Fifth Amendment due process claim on behalf of Mr. Khan or Abdulrahman Al-Aulaqi. 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. Daniels, 474 U.S. at 331-32, 106 S.Ct. 662; accord Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (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, 118 S.Ct. 1708. Accordingly, the Fifth Amendment claims asserted on behalf of Mr. Khan and Abdulrahman Al-Aulaqi will be dismissed for failure to state a claim.
In contrast, with regard to Anwar Al-Aulaqi, Plaintiffs allege both procedural and substantive due process claims. They allege a procedural claim by asserting that Anwar Al-Aulaqi was executed without charge, indictment, or prosecution.
The Court concludes 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.
Plaintiffs rely on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), to support their claims against individual federal officials. Indeed, Bivens permits a damages action against a federal officer for a violation of a plaintiff's clearly-established constitutional rights.
Courts refuse to imply a remedy under Bivens when Congress has provided an "alternative remedy" to protect the interest in question, Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007), or when "special factors counsel[] hesitation" in extending Bivens to a new fact pattern, Wilson v. Libby, 535 F.3d 697, 704 (D.C.Cir.2008) (quoting Bivens, 403 U.S. at 396, 91 S.Ct. 1999). The parties here agree that Plaintiffs have no alternative remedy for their allegations of constitutional violations. Instead, both sides focus on whether "special factors counsel hesitation" in allowing a Bivens remedy on these facts. Id.
No case has discussed precisely whether a plaintiff can proceed on a Bivens action that claims deprivation of life without due process based on the overseas killing by United States officials of a U.S. citizen deemed to be an active enemy. There are, however, analogous cases in which circuit courts have barred Bivens actions to remedy
The D.C. Circuit held in Doe v. Rumsfeld that special factors counseled hesitation and forestalled a Bivens lawsuit brought by a civilian government contractor who was subjected to military detention in Iraq. Doe, 683 F.3d at 394. The Doe plaintiff was a U.S. citizen and employee of an American-owned defense contracting firm. Id. at 392. He worked as a civilian Arabic translator in Iraq to develop intelligence through contact with local Iraqis. When Mr. Doe had been in Iraq for almost one year, he was detained and interrogated by agents of the Navy Criminal Investigative Service (NCIS) and then turned over to the custody of the U.S. military. He was detained at a U.S. military facility near Baghdad, where he was harshly questioned for over six months but never formally charged. Id. When finally released in the United States, Mr. Doe was placed on watch lists that interfered with his employment and travel. Id. Mr. Doe claimed that his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments were violated and sought a Bivens remedy.
The D.C. Circuit concluded that Mr. Doe's claims could not be remedied under Bivens because the Supreme Court "has never implied a Bivens remedy in a case involving the military, national security, or intelligence." Id. at 394. "[T]he insistence (evident from the number of Clauses devoted to the subject) with which the Constitution confers authority over the Army, Navy, and militia upon political branches ... counsels hesitation in our creation of damages remedies in this field." Id. (citing United States v. Stanley, 483 U.S. 669, 682, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (finding no Bivens remedy for damages arising out of military service)).
The Doe court referenced the numerous clauses of the Constitution that squarely place warmaking and national defense powers in the hands of the Executive and Legislative Branches and not in the Judicial Branch. Article I of the Constitution gives to Congress the authority to "provide for the Common Defense," "declare War," "raise and support Armies," "provide and maintain a Navy," "make Rules for the Government and Regulation for the land and naval Forces," and "provide for calling forth the Militia to ... repel Invasions." U.S. Const. art. I, § 8. Thus, the "Constitution
Doe held that special factors counseled hesitation in implying a Bivens remedy for Mr. Doe's claims. The Circuit found that the Doe complaint would "require a court to delve into the military's policies regarding the designation of detainees as `security internees' or `enemy combatants,' as well as policies governing interrogation techniques." Doe, 683 F.3d at 396. In addition, Mr. Doe's allegations against Secretary of Defense Donald Rumsfeld implicated the military chain of command and the discretion given to NCIS agents to detain and question potential enemy combatants. Id. These issues raised concerns relating to separation of powers; even more, the Circuit found that "[l]itigation of Doe's case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq." Id. Extending Bivens to allow a remedy against military officials in Iraq would "disrupt and hinder the ability of our armed forces to act decisively and without hesitation in defense of our liberty and national interests." Id. at 395 (quoting Ali, 649 F.3d at 773); see Vance, 701 F.3d at 200 (recognizing a Bivens remedy would "come at an uncertain cost in national security").
The D.C. Circuit's Doe opinion relied on the Fourth Circuit's decision in Lebron, which had extensively reviewed the factors counseling hesitation in analogous circumstances. Doe, 683 F.3d at 395 (citing Lebron, 670 F.3d at 548-556). Lebron addressed the constitutional claims of Jose Padilla, a U.S. citizen who was subjected to military detention in the United States. Mr. Padilla had joined al-Qa'ida and traveled to an al-Qa'ida camp in Afghanistan for combat training. Lebron, 670 F.3d at 544. He then returned to the United States and was arrested, declared an enemy combatant, and transferred to the Naval Consolidated Brig at Charleston, South Carolina. Id. at 545. Mr. Padilla alleged that he was questioned at length, repeatedly abused, threatened with torture, and deprived of basic necessities while in military custody.
Id. at 549 (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 531, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion)); see Marbury, 5 U.S. (1 Cranch) at 165-66 (under the U.S. Constitution, "the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.").
Lebron further noted that whenever the Supreme Court has considered a Bivens remedy in a case involving the military, it has concluded that constitutional separation of powers counsels hesitation in creation of a new civil remedy. Id. at 550 (citing Stanley, 483 U.S. at 682, 107 S.Ct. 3054). "Padilla's enemy combatant classification and military detention raise fundamental questions incident to the conduct of armed conflict." Id. at 550. "Padilla's complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values." Id. at 551. In refusing to imply a Bivens claim, Lebron described the broad practical impact any Bivens action by Mr. Padilla could have on military intelligence operations:
670 F.3d at 553. The Fourth Circuit concluded that permitting Mr. Padilla's suit to proceed would impermissibly draw the court into "the heart of executive and military planning and deliberation." Id. at 550. Lebron reasoned that while it could be debated whether a particular national security policy or military decision was the most effective counterterrorism strategy, the proper forum for such debate is not a civil cause of action. Id. at 552; see also Vance, 701 F.3d at 200 (judges lack the knowledge and expertise necessary to make decisions regarding national security; Congress and the Commander in Chief ought to make the "essential tradeoffs" required).
The Fourth Circuit stressed that "the need to hesitate before using Bivens" is particularly clear when Congress and the President have exercised their military responsibilities "in concert." Lebron, 670 F.3d at 549. The political branches acted in concert in Lebron. Congress enacted the Authorization for Use of Military Force (AUMF), Pub.L. No. 107-40, 115
Courts also have barred Bivens remedies due to the potential for interference with U.S. foreign policy. See, e.g., Arar, 585 F.3d at 574. Like war and national defense, foreign affairs are constitutionally committed to the Executive and Congress. The President "shall have the Power, with the Advice and Consent of the Senate, to make Treaties ... [and] appoint Ambassadors" and to "receive Ambassadors and other public Ministers." U.S. Const. art. II. §§ 2-3. Congress has the power to "regulate Commerce with foreign Nations" and to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Id. art. I, § 8. The Arar plaintiff was a dual citizen of Canada and Syria who attempted to obtain a Bivens remedy from federal officials who were allegedly responsible for torture he suffered while held in custody in the United States. The Second Circuit refused to imply a Bivens remedy, in part because the suit would affect diplomacy and foreign policy. Arar, 585 F.3d at 574; see also Ali, 649 F.3d at 774 (danger that Bivens suit by foreign citizens would obstruct Government foreign policy is "sufficiently acute" that courts must "leave to Congress the judgment whether a damage remedy should exist."); cf. Arar, 585 F.3d at 576 (the probing of intelligence and classified materials "entails the risk that other countries will become less willing to cooperate with the United States in sharing intelligence resources to counter terrorism.").
In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to question, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Anwar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.
Here, Congress and the Executive acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military. U.S. Const. art. I, § 8; id. art. II, § 2. The need to hesitate before implying a Bivens claim is particularly clear. See Lebron, 670 F.3d at 549. Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces. It is the Executive's position that AQAP is affiliated with al-Qa'ida.
Further, the record is replete with evidence that Anwar Al-Aulaqi was an AQAP leader. He was intimately involved in planning the Christmas Day bombing. See United States v. Abdulmutallab, Crim. No. 10-CR-20005-1 (E.D.Mich.), Sentencing Mem. at 12-14; id., Tr. of Plea Hr'g (Oct. 12, 2011); see also 75 Fed.Reg. 43,233-01. In a May 2010 interview posted online, he called for "jihad against America," praised the actions of his "students" Christmas Day bomber Mr. Abdulmutallab and Fort Hood shooter Maj. Hasan, and asked others to follow. See Al-Aulaqi v. Obama, 727 F.Supp.2d at 10; Clapper Decl. ¶ 16. In July 2010, he wrote an article for the AQAP publication Inspire, advocating assassinations, bombings, and other attacks against Western targets. Al-Aulaqi v. Obama, 727 F.Supp.2d at 21.
The fact is that Anwar Al-Aulaqi was an active and exceedingly dangerous enemy of the United States, irrespective of his distance, location, and citizenship. As evidenced by his participation in the Christmas Day attack, Anwar Al-Aulaqi was able to persuade, direct, and wage war against the United States from his location in Yemen, i.e., without being present on an official battlefield or in a "hot" war zone. Defendants, top military and intelligence officials, acted against Anwar Al-Aulaqi, a notorious AQAP leader, as authorized by the AUMF.
Permitting Plaintiffs 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," Lebron, 670 F.3d at 550, as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States, see Doe, 683 F.3d at 396. Anwar Al-Aulaqi's classification as a key AQAP leader to target by a drone strike raises fundamental questions regarding the conduct of armed conflict. The Constitution commits decision-making in this area to the President, as Commander in Chief, and to Congress. See Hamdi, 542 U.S. at 531, 124 S.Ct. 2633 (plurality opinion) ("Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them."). Further, allowing Plaintiffs to bring a Bivens action against Defendants would hinder their ability in the future to act decisively and without hesitation in defense of U.S. interests. See id. at 395; see also Vance, 701 F.3d at 200 (Congress and the President, not judges, should make the "essential tradeoffs" required to manage national security).
Plaintiffs' Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen. Plaintiffs' suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy. See Arar, 585 F.3d at 574 (Bivens remedy should not be
Although it gave this Court pause, a plaintiff's U.S. citizenship has not affected the analysis of Bivens special factors by the circuit courts. See Doe, 683 F.3d at 396 (a plaintiff's U.S. citizenship "does not alleviate" applicable special factors). The Seventh Circuit expounded:
Vance, 701 F.3d at 203.
Indeed, the danger posed by an individual who is aligned with an enemy of the United States is very real, whether he is a citizen of this or another country. The United States is in a congressionally-declared military conflict. Anwar Al-Aulaqi was an AQAP leader who levied war against his birth country, as unambiguously revealed by his role in the Christmas Day bombing, as well as his video and writings. He also was a U.S. citizen. Whether Plaintiffs can claim damages against the United States is a decision for Congress and the Executive and not something to be granted by judicial implication. The persons holding the jobs of the named 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. Because it reaches this conclusion, the Court does not address additional claims or defenses. See, e.g., Doe v. Rumsfeld, 683 F.3d at 397 (having determined that a Bivens claim was not viable, court did not reach qualified immunity defense). Accordingly, the Court will grant Defendants' motion to dismiss.
As exhibits to its Statement of Interest, the United States refiled the same unclassified declarations that it had filed in support of its invocation of the state secrets privilege in Al-Aulaqi v. Obama, namely the unclassified declarations of Messrs. Clapper, Gates, and Panetta. See Clapper Decl.; U.S. Statement of Interest, Ex. 2 [Dkt. 19-2] (Gates Decl.); id., Ex. 3 [Dkt. 19-3] (Panetta Decl.). The unclassified declarations refer to more detailed classified declarations that were provided to the district court in Al-Aulaqi v. Obama. This Court ordered the United States to provide the classified declarations to the
The United States, however, mischaracterizes the Complaint. Nowhere does the Complaint allege that Anwar Al-Aulaqi was an "enemy" of the United States or that he was part of AQAP. The Complaint states only that "government officials told reporters that Al-Aulaqi had "cast his lot" with terrorist groups and encouraged others to engage in terrorist activity. Later, they claimed he had played "a key role in setting the strategic direction" for [AQAP]." Compl. ¶ 26. Further, far from alleging that Anwar Al-Aulaqi was killed "in the course of an armed conflict," the Complaint asserts that he was killed outside of armed conflict, in Yemen. See Compl. ¶ 4 ("At the time of the killing, the United States was not engaged in armed conflict with or within Yemen."). In fact, Plaintiffs allege that "at the time the strike was carried out, Anwar Al-Aulaqi was not engaged in activities that presented a concrete, specific, and imminent threat of death or serious physical injury." Id. ¶ 34.
The United States' truculent opposition to the December 26, 2013 Minute Order made this case unnecessarily difficult. Were the Court not able to cobble together enough judicially-noticeable facts from various records, it would have denied the motion to dismiss for the sheer fact that the Defendants failed to support the assertion that Bivens special factors apply. Since the Court was able to take notice of facts sufficient to determine the special factors issue, the December 26, 2013 Minute Order will be vacated and the United States' motion for reconsideration will be denied as moot.
Plaintiffs also allege that Defendants violated the Constitution's Bill of Attainder Clause by placing Anwar Al-Aulaqi on the JSOC "kill list."
For the reasons set forth above, Defendants' motion to dismiss [Dkt. 18] will be granted, and the Complaint will be dismissed. The December 26, 2013 Minute Order will be vacated, and the United States' motion for reconsideration [Dkt. 34] will be denied as moot. A memorializing Order accompanies this Opinion.
AG Letter at 3 (emphasis in original).
U.S. Const. art. III, § 3.
Minute Order (Dec. 26, 2013).
