United States District Court, D. Columbia.
NASSER AL-AULAQI, as personal representative of the Estates of ANWAR AL-AULAQI and ABDULRAHMAN AL-AULAQI, et al., Plaintiffs,
LEON C. PANETTA, et al., Defendants
For NASSER AL-AULAQI, as personal representative of the estates of Anwar Al-Aulaqi and Abdulrahman Al-Aulaqi, SARAH KHAN, as personal representative of the estate of Samir Khan, Plaintiffs: Arthur B. Spitzer, LEAD ATTORNEY, AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL, Washington, DC; Brett Max Kaufman, Jameel Jaffer, LEAD ATTORNEYS, PRO HAC VICE, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, NY; Hina Shamsi, LEAD ATTORNEY, PRO HAC VICE,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, NY; Maria C. LaHood, Pardiss Kebriaei, LEAD ATTORNEYS, PRO HAC VICE, CENTER FOR CONSTITUTIONAL RIGHTS, New York, NY.
For UNITED STATES OF AMERICA, Interested Party: Paul Elias Werner, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.
For LEON PANETTA, Secretary of Defense, DAVID PETRAEUS, Director, Central Intelligence Agency: all in their individual capacities, JOSEPH VOTEL, Commander, Joint Special Operations Command, WILLIAM H. MCRAVEN, Commander, Special Operations Command, Defendants: Paul Elias Werner, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.
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
targeted someone else, among those it killed was Abdulrahman Al-Aulaqi, Anwar Al-Aulaqi's teenage son. Nasser Al-Aulaqi, father of Anwar and grandfather of Abdulrahman, and Sarah Khan, mother of Samir, sue various U.S. officials in their personal capacities. Plaintiffs claim, inter alia, that these officials violated the Fifth Amendment rights of the decedents by authorizing the drone strikes. The question presented 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. However, on these facts and under this Circuit's precedent, the Court will grant Defendants' motion to dismiss.
A. The Drone Strikes and Prior Suit
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) had placed him on a military " kill list" and tried unsuccessfully to kill him. Compl. [Dkt. 3] ¶ ¶ 2, 23 (citing Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, Wash. Post, Jan. 27, 2010). The Office of Legal Counsel within the U.S. Department of Justice allegedly completed a memorandum that provided legal justification for killing Anwar Al-Aulaqi overseas. See id. ¶ 25 (citing Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. Times, Oct. 8, 2011). Government officials told reporters that Anwar Al-Aulaqi had " cast his lot" with terrorist groups, encouraged others to engage in terrorist activity, and " played a key role in setting the strategic direction" for AQAP. See id. ¶ 26. Leon Panetta, former Director of the Central Intelligence Agency (CIA), and Admiral William H. McRaven, former Commander of JSOC, allegedly participated in the decision to add Anwar Al-Aulaqi to the list. Id. ¶ 24. The U.S. Government never publicly indicted or prosecuted Anwar Al-Aulaqi for any crime. Id. ¶ 26.
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 ...