In November I wrote about a suit, brought by the surviving relatives of foreign drone attack victims, against Secretary of Defense Leon Panetta, former CIA Director David Petreus, Special Operations Commander William McRaven and Joint Special Operations Commander Joseph Votel.
Each of the persons killed by the drone attacks were American citizens living in Yemen. Their surviving relatives claim that the missile strikes were committed unlawfully because, among other reasons, (1) the U.S. was not engaged in an armed conflict with or within Yemen (2) none of the victims were “directly participating in hostilities within the meaning of the law of war” (3) all three were American citizens and (4) none were tried or convicted prior to the attacks taking place. The suit alleges that the victims were denied due process as required by the Fifth Amendment to the U.S. Constitution, and that the killings constituted an unreasonable seizure, in violation of the Fourth Amendment.
Panetta, McRaven, Votel and Petreus have now responded, asking that the Court dismiss the case pursuant to Federal Rule of Procedure 12, because (1) the federal court in Washington, D.C. lacks jurisdiction over the case and (2) because the plaintiffs have failed to state a claim upon which the court may grant relief. As expected, they claim the plaintiffs’ suit is “rife with separation of powers, national defense, military, intelligence and diplomatic concerns”. They urge “judicial restraint”, since the plaintiffs seek damages from the “personal resources of some of the highest officials in the U.S. defense and intelligence communities”.
The response claims that one of the decedents, Anwar Al-Auluqi, was a known leader of Al Qaida in the Arabian Peninsula, and had been named a Specially Designated Global Terrorist. No such allegations are made regarding the other two decedents. The defendants assert the following four grounds for dismissal of the suit:
1. They claim that the suit papers do not establish that the plaintiffs have standing to bring the suit. Specifically, the survivors fail to properly allege that they are the legal representatives of the estates of the three drone victims.
2. They allege that the plaintiffs’ claims raise “non-justiciable political questions”. They point out the United States Supreme Court has long recognized that certain questions of a political nature are not “fit for adjudication” by the courts. This doctrine is primarily a function of the separation of powers doctrine. According to the defendants, the plaintiffs’ claim that U.S. officials unlawfully applied the war making and national defense powers of the political branches to conduct alleged missile strikes against enemy forces engaged in armed conflict against the United States”. This, Petreus claims, is an exclusive function of the Executive Branch, and that the courts do not have the right or power to review it.
3. Defendants argue that the court should not enforce a private damages cause of action, against individual federal officials, in the separation of powers context.
4. Lastly, the defendants claim that they are entitled to qualified immunity. Basically, they claim, government officials performing their discretionary functions (such as authorizing drone strikes) are immune from suit unless their actions violated clearly established statutory or constitutional rights.
To me, the fourth defense is the most interesting. The drone strike victims, whether or not they were terrorists, were American citizens and thus have a intriguing argument that they were deprived of their lives, by the government, without due process (trial by jury, right to counsel, etc.). The government’s motion acknowledges that the claims are “unique and extraordinary”, and that the extent to which the Fourth and Fifth Amendments apply to the victims is “not clearly established”. The motion correctly points out that the United States military killed thousands of citizens during the Civil War, as well as others in more recent wars (likely referring to “friendly fire” incidents). But, they note, no court has ever ruled on the constitutional claims of such casualties.
The brief suggests that neither the Fourth of Fifth Amendments apply in the context of war abroad and that, if it does, the plaintiffs have failed to adequately claim a violations of these constitutional protections. The defendants point out that “once hostilities have begun, certainly citizenship does not immunize one from becoming an enemy belligerent”. They also cite cases stating that “due process rights may be diminished in a battlefield situation”.
It will take an extremely gutsy judge to take on these issues, and my guess is that the court will rule that the survivor’s claims are not proper subjects for court intervention. To judge the actions of the defendants, it seems the judge would have to be armed with all of the knowledge (including top secret information) that Petreus and Panetta utilized prior to ordering the strikes. Stay tuned.