Case 1:12-cv-01192-RMC Document 3 Filed 07/18/12 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NASSER AL-AULAQI, as personal representative of the estates of ANWAR AL-AULAQI and ABDULRAHMAN AL-AULAQI c/o American Civil Liberties Union of the Nation’s Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008,
SARAH KHAN, as personal representative of the estate of SAMIR KHAN c/o American Civil Liberties Union of the Nation’s Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008,
Plaintiffs,
v.
LEON C. PANETTA, Secretary of Defense 1000 Defense Pentagon Washington, D.C. 20301-1000,
WILLIAM H. MCRAVEN, Commander, Special Operations Command 7701 Tampa Point Boulevard MacDill Air Force Base, FL 33621-5323,
JOSEPH VOTEL, Commander, Joint Special Operations Command P.O. Box 70239 Fort Bragg, N.C. 28307,
DAVID H. PETRAEUS, Director, Central Intelligence Agency Central Intelligence Agency Washington, D.C. 20505,
All in their individual capacities,
Defendants.

No. 12-cv-_____

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COMPLAINT (Violation of Fourth and Fifth Amendments and Bill of Attainder Clause – targeted
killing) INTRODUCTION 1. Since 2001, and routinely since 2009, the United States has carried out deliberate and premeditated killings of suspected terrorists overseas. The U.S. practice of “targeted killing” has resulted in the deaths of thousands of people, including many hundreds of civilian bystanders. While some targeted killings have been carried out in the context of the wars in Afghanistan and Iraq, many have taken place outside the context of armed conflict, in countries including Yemen, Somalia, Pakistan, Sudan, and the Philippines. These killings rely on vague legal standards, a closed executive process, and evidence never presented to the courts. This case concerns the role of Defendants Leon C. Panetta, William H. McRaven, Joseph Votel, and David H. Petraeus (collectively, “Defendants”) in authorizing and directing the killing of three American citizens in Yemen last year. The killings violated fundamental rights afforded to all U.S. citizens, including the right not to be deprived of life without due process of law. 2. In late 2009 or early 2010, Anwar Al-Aulaqi, an American citizen, was added to “kill lists” maintained by the Central Intelligence Agency (“CIA”) and the Joint Special Operations Command (“JSOC”), a component of the Department of Defense (“DOD”). On September 30, 2011, unmanned CIA and JSOC drones fired missiles at Anwar Al-Aulaqi and his vehicle, killing him and at least three other people, including Samir Khan, another American citizen. Defendants authorized and directed their subordinates to carry out the strike.
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3. On October 14, 2011, Defendants authorized and directed another drone strike in Yemen, this one approximately 200 miles away from the strike that had killed Anwar Al-Aulaqi and Samir Khan two weeks earlier. The October 14 strike killed at least seven people at an open-air restaurant, including two children. One of the children was 16year-old Abdulrahman Al-Aulaqi, who was Anwar Al-Aulaqi’s son and also an American citizen.
4. Defendants’ killing of Anwar Al-Aulaqi was unlawful. At the time of the killing, the United States was not engaged in an armed conflict with or within Yemen. Outside the context of armed conflict, both the United States Constitution and international human rights law prohibit the use of lethal force unless, at the time it is applied, lethal force is a last resort to protect against a concrete, specific, and imminent threat of death or serious physical injury. Upon information and belief, Anwar Al-Aulaqi was not engaged in activities that presented such a threat, and the use of lethal force against him was not a last resort. Even in the context of an armed conflict, the law of war cabins the government’s authority to use lethal force and prohibits killing civilians who are not directly participating in hostilities. The concept of “direct participation” requires both a causal and temporal nexus to hostilities. Upon information and belief, Defendants directed and authorized the killing of Anwar Al-Aulaqi even though he was not then directly participating in hostilities within the meaning of the law of war.
5. Defendants’ killing of Samir Khan and Abdulrahman Al-Aulaqi was also unlawful. Upon information and belief, neither Samir Khan nor Abdulrahman Al-Aulaqi was engaged in any activity that presented a concrete, specific, and imminent threat to life; nor was either of them directly participating in hostilities. The news media have
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reported, based on statements attributed to anonymous U.S. government officials, that Samir Khan was not the target of the September 30 strike and that Abdulrahman AlAulaqi was not the target of the October 14 strike. 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. Even in the context of an armed conflict, government officials must comply with the requirements of distinction and proportionality and take all feasible measures to protect bystanders. Upon information and belief, Samir Khan and Abdulrahman AlAulaqi were killed because Defendants failed to take such measures.
6. Plaintiffs are the personal representatives of the estates of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. They seek damages from Defendants for their role in authorizing and directing the killings of Plaintiffs’ sons and grandson in violation of the Fourth and Fifth Amendments and the Bill of Attainder Clause.
JURISDICTION AND VENUE 7. This complaint is for compensatory damages resulting from the conduct of Defendants, all of them U.S. government officials, in violation of the Fourth and Fifth Amendments and the Bill of Attainder Clause. 8. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 (federal question) and the U.S. Constitution. 9. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1).
PARTIES 10. Plaintiff Nasser Al-Aulaqi is the father of Anwar Al-Aulaqi and the grandfather of Abdulrahman Al-Aulaqi. He is a citizen and resident of Yemen. He
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brings this suit as the personal representative of the estates of his son and grandson, American citizens who were killed by missile strikes authorized and directed by Defendants.
11. Plaintiff Sarah Khan, an American citizen, is the mother of Samir Khan. She brings this suit as the personal representative of the estate of her son, an American citizen who was killed by missile strikes authorized and directed by Defendants.
12. Defendant Leon C. Panetta is the Secretary of Defense, a post he has held since July 2011. As Defense Secretary, he has ultimate authority over U.S. armed forces worldwide, including over JSOC. He authorized Anwar Al-Aulaqi’s continued placement on JSOC’s kill list after July 2011 and authorized and directed the missile strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. Between February 2009 and June 2011, Defendant Panetta was the Director of the CIA. As CIA Director, he authorized the addition of Anwar Al-Aulaqi to the CIA’s kill list. He is sued in his individual capacity.
13. Defendant William H. McRaven is Commander of the U.S. Special Operations Command (“USSOCOM”), a post he has held since August 2011. As Commander of USSOCOM, Defendant McRaven has authority over JSOC, a subordinate unified command within USSOCOM. He authorized and directed the missile strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. Between June 2008 and June 2011, he was the Commander of JSOC. In that capacity, he authorized the addition of Anwar Al-Aulaqi to JSOC’s kill list. He is sued in his individual capacity.
14. Defendant Joseph Votel is the Commander of JSOC, a post he has held since June 2011. As Commander of JSOC, he has authority over JSOC operations. He
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authorized and directed the missile strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. He is sued in his individual capacity.
15. Defendant David H. Petraeus is the Director of the CIA, a post he has held since September 2011. As CIA Director, he has ultimate authority over the CIA’s operations worldwide. He authorized and directed the missile strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. He is sued in his individual capacity.
FACTUAL ALLEGATIONS “Targeted Killings” by the United States 16. The first reported post-2001 targeted killing by the U.S. government outside Afghanistan occurred in Yemen in November 2002, when a CIA-operated Predator drone fired a missile at a terrorism suspect traveling in a car with other passengers. The strike killed all passengers in the vehicle, including an American citizen. The United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions later stated that the strike constituted “a clear case of extrajudicial killing” and set an “alarming precedent.” 17. Since 2002, the United States has continued to carry out targeted killings outside the context of armed conflict. The pace of these killings has increased dramatically since 2009. In the course of carrying out these killings, the government has killed many hundreds of civilian bystanders. In December 2009, a U.S. missile strike in the village of al-Majalah, Yemen, killed 41 people, including 21 children. 18. In April 2012, Deputy National Security Advisor John Brennan acknowledged publicly that the United States carries out targeted killings of suspected terrorists “beyond
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hot battlefields like Afghanistan,” often using “remotely piloted aircraft” known as “drones.” Both the CIA and JSOC are involved in authorizing, planning, and carrying out these killings; both the CIA and JSOC have carried out such killings in Yemen; and, according to a December 2011 report in the Washington Post and other news sources, the CIA and JSOC “share intelligence and coordinate attacks.” Greg Miller, Under Obama, an Emerging Global Apparatus for Drone Killing, Wash. Post, Dec. 27, 2011.
19. Both the CIA and JSOC maintain “kill lists” setting out the names of the individuals they intend to kill. See Jo Becker & Scott Shane, Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will, N.Y. Times, May 29, 2012. Upon information and belief, the inclusion of an individual on one or both of the lists represents a standing order authorizing and directing certain government personnel to kill that individual. In a February 2011 interview with Newsweek, the CIA’s former acting general counsel John Rizzo described the CIA’s list as “basically a hit list.” He stated that there are approximately 30 individuals on the list “at any given time,” and that “[t]he Predator [drone] is the weapon of choice, but it could also be someone putting a bullet in your head.” Tara McKelvey, Inside the Killing Machine, Newsweek, Feb. 13, 2011.
20. Senior government officials, including then-Director of National Intelligence Dennis Blair and Deputy National Security Advisor John Brennan, have made clear that the government’s claimed authority to carry out the targeted killing of suspected terrorists, including killings executed outside the context of armed conflict, extends to American citizens. However, government officials have offered incomplete and inconsistent explanations of the legal standards that govern the placement of U.S. citizens on the kill lists. Some officials have suggested that the U.S. government targets its
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citizens only if they present “imminent” threats, but they have defined the term “imminent” so broadly as to negate its meaning.
Defendants’ Decision to Authorize the Killing of Anwar Al-Aulaqi 21. Plaintiff Nasser Al-Aulaqi is a Yemeni citizen who moved to the United States in 1966 to study as a Fulbright scholar at New Mexico State University. He and his wife lived in the United States until 1978, when they moved back to Yemen. In Yemen, he served as Minister of Agriculture and Fisheries and president of Sana’a University, and founded and served as president of Ibb University. He currently resides in Yemen with his wife, who is an American citizen, and their family. 22. Plaintiff Nasser Al-Aulaqi’s son, Anwar, was born in 1971 in New Mexico. He moved to Yemen with his parents in 1978. In 1991, he returned to the United States to attend college at Colorado State University. He obtained his master’s degree from San Diego State University and then enrolled in a Ph.D. program at George Washington University, which he attended through December 2001. While living in the United States, he married and had children, including Abdulrahman. He left the United States in 2003, first for the United Kingdom and then for Yemen. 23. In January 2010, the Washington Post reported that JSOC had added Anwar Al-Aulaqi to its kill list and had tried unsuccessfully to kill him in December 2009. Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, Wash. Post, Jan. 27, 2010. Other media organizations reported the same information. In March 2010, the Wall Street Journal reported that then-CIA Director Defendant Panetta stated that Anwar Al-Aulaqi was “someone that we’re looking for” and that “there isn’t any question that he’s one of the individuals that we’re focusing on.” Keith Johnson,
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U.S. Seeks Cleric Backing Jihad, Wall St. J., Mar. 26, 2010. In April 2010, multiple media organizations, including the Washington Post, reported that Anwar Al-Aulaqi had been added to the CIA’s kill list. See Greg Miller, Muslim Cleric Aulaqi Is 1st U.S. Citizen on List of Those CIA Is Allowed To Kill, Wash. Post, Apr. 7, 2010.
24. The decision to add Anwar Al-Aulaqi to government kill lists was made after a closed executive process. Defendant Panetta participated in this process, and upon information and belief Defendant McRaven participated in this process as well. Upon information and belief, Defendants authorized and directed Anwar Al-Aulaqi’s killing even though, at the time lethal force was used, Anwar Al-Aulaqi was not engaged in activities that presented a concrete, specific, and imminent threat to life, and even though there were means short of lethal force that could reasonably have been used to address any such threat. Upon information and belief, Defendants authorized and directed Anwar Al-Aulaqi’s killing even though he was not then directly participating in hostilities within the meaning of the law of war.
25. In or around June 2010, the Department of Justice’s Office of Legal Counsel completed a memorandum providing legal justifications for the killing of Anwar AlAulaqi. Substantial portions of the memorandum were summarized in October 2011 by the New York Times, which reported, based on conversations with individuals who had read the document, that the memorandum “provided the justification for acting [against Anwar Al-Aulaqi] despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war.” Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. Times, Oct. 8, 2011.
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26. Between the time Anwar Al-Aulaqi was added to the JSOC and CIA kill lists and the time he was killed, 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 “Al Qaeda in the Arabian Peninsula (AQAP).” The government never publicly indicted Anwar AlAulaqi for any crime.
Nasser Al-Aulaqi’s Lawuit to Enjoin the Government from Killing His Son 27. On August 30, 2010, Nasser Al-Aulaqi filed suit in this Court as next friend of his son, Anwar, asking that the Court enter an injunction barring the President, the CIA, and DOD (including JSOC) from carrying out the targeted killing of his son unless the executive concluded that he presented a concrete, specific, and imminent threat to life, and that there were no reasonably available measures short of lethal force that could be expected to address that threat. After hearing argument on November 8, 2010, the Court dismissed the Complaint on December 7, 2010, holding that Nasser Al-Aulaqi lacked standing to assert his son’s constitutional rights and that at least some of the issues raised by the Complaint were non-justiciable political questions. No appeal was taken.
Samir Khan 28. Plaintiff Sarah Khan is a U.S. citizen who has lived in the United States since 1992 with her husband and children. Her son, Samir, was born in 1985 and became a U.S. citizen in 1998. 29. Samir Khan attended elementary school in Queens, New York, and high school on Long Island, New York. After graduating from high school in 2003, he moved
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to North Carolina, where he attended a community college and worked part-time. He left for Yemen in October 2009.
30. Anonymous government officials have told reporters that Samir Khan was a “propagandist” for AQAP. The government never publicly indicted him for any crime.
The September 30, 2011 Killing of Anwar Al-Aulaqi and Samir Khan 31. On the morning of September 30, 2011, Anwar Al-Aulaqi and Samir Khan were in the Yemeni province of al-Jawf, some 90 miles northeast of Sana’a. Upon information and belief, Defendants Panetta, McRaven, Votel, and Petraeus authorized and directed personnel under their command to fire missiles at Anwar Al-Aulaqi and his vehicle from unmanned U.S. drones. The missiles destroyed the vehicle and killed Anwar Al-Aulaqi, Samir Khan, and at least two others. Witnesses reported that the missile strike left the vehicle a “charred husk” and “tore the [victims’] bodies to pieces.” Dominic Rushe, et al., Anwar al-Awlaki Death: US Keeps Role Under Wraps to Manage Yemen Fallout, Guardian, Sept. 30, 2011; Sudarsan Raghavan, Awlaqi Hit Misses alQaeda Bombmaker, Yemen Says, Wash. Post, Sept 30, 2011. According to a September 30, 2011 article in the Washington Post and a June 2012 book by journalist Daniel Klaidman, personnel under Defendants’ command had been surveilling Anwar Al-Aulaqi for a period as long as three weeks leading up to the strike. Greg Miller, Strike on Aulaqi Demonstrates Collaboration Between CIA and Military, Wash. Post, Sept. 30, 2011; Daniel Klaidman, Kill or Capture (2012). Defendants’ lengthy surveillance suggests that the use of lethal force was not a last resort and that additional measures could have been taken to protect bystanders from harm.
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32. The surveillance and the strike were carried out by the CIA and JSOC. Upon information and belief, Defendant Petraeus was personally responsible for authorizing and directing the CIA’s involvement in the September 30 strike, and Defendants Panetta, McRaven, and Votel were personally responsible for authorizing and directing JSOC’s involvement in it. Defendants coordinated with each other in planning the attack and carrying it out.
33. Senior government officials, including Defendant Panetta and President Barack Obama, have acknowledged the responsibility of the United States for killing Anwar Al-Aulaqi. On the same day the strike was carried out, DOD published a news article stating that “[a] U.S. airstrike . . . killed . . . Anwar [Al-Aulaqi] early this morning” and that he had been “high on the military-intelligence list of terrorist targets.” Lisa Daniel, Panetta: Awlaki Airstrike Shows U.S.-Yemeni Cooperation, Am. Forces Press Service, Sept. 30, 2011. The following day, Defendant Panetta stated in a public speech that “it is because of th[e] teamwork between our intelligence and our military communities that we were successful in . . . taking down al-Awlaki.” Three weeks later, President Obama stated on national television that “working with the Yemenis, we were able to remove [Anwar Al-Aulaqi] from the field.” Tonight Show with Jay Leno (NBC television broadcast Oct. 25, 2011).
34. Defendants’ killing of Anwar Al-Aulaqi was unlawful. Upon information and belief, Defendants authorized and directed the strike even though, 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. Upon information and belief, Defendants authorized and directed the strike even though there were means short
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of lethal force that could reasonably have been used to neutralize any threat that Anwar Al-Aulaqi’s activities may have presented. The killing of Anwar Al-Aulaqi was unlawful even if analyzed under the law of war because, upon information and belief, Defendants authorized and directed the strike even though Anwar Al-Aulaqi was not then directly participating in hostilities within the meaning of the law of war.
35. Defendants’ killing of Samir Khan was also unlawful. Samir Khan was not engaged in any activity that presented a concrete, specific, and imminent threat of death or serious physical injury; nor was he directly participating in hostilities. If he was killed because of the government’s targeting of Anwar al-Aulaqi, his killing was unlawful because Al-Aulaqi’s killing was unlawful and because, upon information and belief, Defendants authorized and directed the strike without taking legally required measures to avoid harm to bystanders. Even in the context of an armed conflict, government officials must comply with the requirements of distinction and proportionality and take all feasible measures to protect bystanders. Upon information and belief, Samir Khan was killed because Defendants failed to take such measures.
The October 14, 2011 Killing of Abdulrahman Al-Aulaqi 36. Plaintiff Nasser Al-Aulaqi’s grandson, Abdulrahman Al-Aulaqi, was born in Denver, Colorado, on August 26, 1995. He was raised in the United States until 2002, when he moved with his family to Yemen. At the time of his death, he was a student in his first year of high school and resided in Sana’a, Yemen, with his mother, siblings, grandmother, and grandfather. 37. On October 14, 2011, Abdulrahman was at an open-air restaurant near the town of Azzan, in the southern Yemeni province of Shabwa. Upon information and
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belief, Defendants Panetta, McRaven, Votel, and Petraeus authorized and directed personnel under their command to fire missiles from unmanned U.S. drones at a person at or near the restaurant. According to media sources, the intended target was Ibraham AlBanna, an Egyptian national, but it was later reported that he was not among those killed by the strike. See Gregory Johnsen, Signature Strikes in Yemen, Waq al-Waq, Apr. 19, 2012. The strike killed at least seven people, including Abdulrahman and one of his cousins, another minor. Abdulrahman himself was 16 years old.
38. After the strike, a senior Obama administration official described Abdulrahman to the Los Angeles Times as a “military-aged male.” Ken Dilanian, Grieving Awlaki Family Protests Yemen Drone Strikes, L.A. Times, Oct. 19, 2011. Other news sources described Abdulrahman as a militant in his twenties. To correct these erroneous descriptions, Abdulrahman’s family provided his birth certificate to the Washington Post. After the Washington Post published the birth certificate, U.S. officials acknowledged in anonymous statements to the press that Abdulrahman had been a minor.
39. Upon information and belief, Defendant Panetta was personally responsible for authorizing and directing the CIA’s involvement in the October 14 strike, and Defendants Petraeus, McRaven, and Votel were personally responsible for authorizing and directing JSOC’s involvement in the October 14 strike. Defendants coordinated with each other in planning the attack and carrying it out.
40. The killing of Abdulrahman Al-Aulaqi was unlawful. Abdulrahman was not engaged in any activity that presented a concrete, specific, and imminent threat of death or serious physical injury; nor was he directly participating in hostilities. If he was killed because the government was targeting another individual, his killing was unlawful
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because, upon information and belief, Defendants authorized and directed the strike without taking legally required measures to avoid harm to him. Even in the context of an armed conflict, the government must comply with the requirements of distinction and proportionality and take all feasible measures to protect bystanders. Upon information and belief, Abdulrahman Al-Aulaqi was killed because Defendants failed to take such measures.
CAUSES OF ACTION First Claim for Relief Fifth Amendment: Due Process 41. Defendants’ actions described herein violated the substantive and procedural due process rights of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi under the Fifth Amendment to the Constitution. Defendants Panetta, McRaven, Votel, and Petraeus violated the Fifth Amendment due process rights of Anwar al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi by authorizing and directing their subordinates to use lethal force against them in the circumstances described above. The deaths of Anwar alAulaqi, Samir Khan, and Abdulrahman Al-Aulaqi were a foreseeable result of Defendants’ actions and omissions. Second Claim for Relief Fourth Amendment: Unreasonable Seizure 42. Defendants’ actions described herein violated the rights of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi to be free from unreasonable seizures under the Fourth Amendment to the Constitution. Defendants Panetta, McRaven, Votel, and Petraeus violated the Fourth Amendment rights of Anwar al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi by authorizing and directing their subordinates to use lethal
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force against them in the circumstances described above. The deaths of Anwar al-Aulaqi,
Samir Khan, and Abdulrahman Al-Aulaqi were a foreseeable result of Defendants’
actions and omissions.
Third Claim for Relief Bill of Attainder
43. Defendants’ actions described herein with respect to Anwar Al-Aulaqi
violated the Constitution’s Bill of Attainder Clause. Defendants’ actions constituted an
unconstitutional act of attainder because Defendants designated Anwar Al-Aulaqi for
death without the protections of a judicial trial in the circumstances described above. The
death of Anwar al-Aulaqi was a foreseeable result of Defendants’ actions and omissions.
PRAYER FOR RELIEF
Wherefore, Plaintiffs respectfully request that this Court enter judgment awarding them:
A. Damages in an amount to be determined at trial; and
B. Such other relief as the Court deems just and proper.
Respectfully submitted, /s/ Arthur B. Spitzer ________________________ Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union of the Nation’s Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008 Telephone: (202) 457-0800; Fax: (202) 452-1868 art@aclu-nca.org
Jameel Jaffer (to be admitted pro hac vice) Hina Shamsi (to be admitted pro hac vice) Nathan Freed Wessler American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 519-7814 jjaffer@aclu.org
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July 18, 2012

Pardiss Kebriaei (to be admitted pro hac vice) Maria C. LaHood (to be admitted pro hac vice) Baher Azmy Center for Constitutional Rights 666 Broadway, 7th floor New York, NY 10012 (212) 614-6452 pkebriaei@ccrjustice.org

17

 
 EXHIBIT 1
Defendants’ Response to the Court’s May 22, 2013 Order Nasser Al-Aulaqi, et al. v. Panetta, et al., No. 1:12-cv-01192 (RMC)

<.@ffict llf fqt 1\ttorntl! ~tntrnl
llttas ~ingtnn. E. Qt. 20,530
May 22, 2013
The Honorable Patrick J. Leahy Chairman Committee on the Judiciary United States Senate Washington, DC 20530
Dear Mr. Chairman:
Since entering office, the President has made clear his commitment to providing Congress and the American people with as much information as possible about our sensitive counterterrorism operations, consistent with our national security and the proper functioning of the Executive Branch. Doing so is necessary, the President stated in his May 21, 2009 National Archives speech, because it enables the citizens of our democracy to "make informed judgments and hold [their Government] accountable."
In furtherance of this commitment, the Administration has provided an unprecedented level of transparency into how sensitive counterterrorism operations are conducted. Several senior Administration officials, including myself, have taken numerous steps to explain publicly the legal basis for the United States' actions to the American people and the Congress. For example, in March 2012, I delivered an address at Northwestern University Law School discussing certain aspects of the Administration's counterterrorism legal framework. And the Department of Justice and other departments and agencies have continually worked with the appropriate oversight committees in the Congress to ensure that those committees are fully informed of the legal basis for our actions.
The Administration is determined to continue these extensive outreach efforts to communicate with the American people. Indeed, the President reiterated in his State of the Union address earlier this year that he would continue to engage with the Congress about our counterterrorism efforts to ensure that they remain consistent with our laws and values, and become more transparent to the American people and to the world.
To this end, the President has direcied me to disclose certain information that until now has been properly classified. You and other Members of your Committee have on numerous occasions expressed a particular interest in the Administration's use of lethal force against U.S. citizens. In light of this fact, I am writing to disclose to you certain information about the number of U.S. citizens who have been killed by U.S. counterterrorism operations outside of areas of active hostilities. Since 2009, the United States, in the conduct of U.S. counterterrorism operations against al-Qa'ida and its
Ex. 1 - 1

associated forces outside of areas of active hostilities, has specifically targeted and killed one U.S. citizen, Anwar al-Aulaqi. The United States is further aware of three other U.S. citizens who have been killed in such U.S. counterterrorism operations over that same time period: Samir Khan, 'Abd al-Rahman Anwar al-Aulaqi, and Jude Kenan Mohammed. These individuals were not specifically targeted by the United States.
As I noted in my speech at Northwestern, "it is an unfortunate but undeniable fact" that a "small number" of U.S. citizens "have decided to commit violent attacks against their own country from abroad." Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during the current conflict, it is clear and logical that United States citizenship alone does not make such individuals immune from being targeted. Rather, it means that the government must take special care and take into account all relevant constitutional considerations, the laws of war, and other law with respect to U.S. citizens- even those who are leading efforts to kill their fellow, innocent Americans. Such considerations allow for the use of lethal force in a foreign country against a U.S. citizen who is a senior operational leader of alQa'ida or its associated forces, and who is actively engaged in planning to kill Americans, in the following circumstances: (1) the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; (2) capture is not feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles.
These conditions should not come as a surprise: the Administration's legal views on this weighty issue have been clear and consistent over time. The analysis in my speech at Northwestern University Law School is entirely consistent with not only the analysis found in the unclassified white paper the Department of Justice provided to your Committee soon after my speech, but also with the classified analysis the Department shared with other congressional committees in May 2011 - months before the operation that resulted in the death of Anwar al-Aulaqi. The analysis in my speech is also entirely consistent with the classified legal advice on this issue the Department of Justice has shared with your Committee more recently. In short, the Administration has demonstrated its commitment to discussing with the Congress and the American people the circumstances in which it could lawfully use lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa'ida or its associated forces, and who is actively engaged in planning to kill Americans.
Anwar al-Aulaqi plainly satisfied all of the conditions I outlined in my speech at Northwestern. Let me be more specific. Al-Aulaqi was a senior operational leader of alQa'ida in the Arabian Peninsula (AQAP), the most dangerous regional affiliate of alQa'ida and a group that has committed numerous terrorist attacks overseas and attempted multiple times to conduct terrorist attacks against the U.S. homeland. And al-Aulaqi was not just a senior leader of AQAP- he was the group's chief of external operations, intimately involved in detailed planning and putting in place plots against U.S. persons.
In this role, al-Aulaqi repeatedly made clear his intent to attack U.S. persons and his hope that these attacks would take American lives. For example, in a message to
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Muslims living in the United States, he noted that he had come "to the conclusion that jihad against America is binding upon myselfjust as it is binding upon every other able Muslim." But it was not al-Aulaqi's words that led the United States to act against him: they only served to demonstrate his intentions and state of mind, that he "pray[ed] that Allah [would] destro[y] America and all its allies." Rather, it 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 made him a lawful target and led the United States to take action.
For example, when Umar Farouk Abdulmutallab- the individual who attempted to blow up an airplane bound for Detroit on Christmas Day 2009 - went to Yemen in 2009, al-Aulaqi arranged an introduction via text message. Abdulmutallab told U.S. officials that he stayed at al-Aulaqi's house for three days, and then spent two weeks at an AQAP training camp. Al-Aulaqi planned a suicide operation for Abdulmutallab, helped Abdulmutallab draft a statement for a martyrdom video to be shown after the attack, and directed him to take down a U.S. airliner. Al-Aulaqi's last instructions were to blow up the airplane when it was over American soil. Al-Aulaqi also played a key role in the October 2010 plot to detonate explosive devices on two U.S.-bound cargo planes: he not only helped plan and oversee the plot, but was also directly involved in the details of its execution - to the point that he took part in the development and testing of the explosive devices that were placed on the planes. Moreover, information that remains classified to protect sensitive sources and methods evidences al-Aulaqi's involvement in the planning of numerous other plots against U.S. and Western interests and makes clear he was continuing to plot attacks when he was killed.
Based on this information, high-level U.S. government officials appropriately concluded that al-Aulaqi posed a continuing and imminent threat of violent attack against the United States. Before carrying out the operation that killed al-Aulaqi, senior officials also determined, based on a careful evaluation of the circumstances at the time, that it was not feasible to capture al-Aulaqi. In addition, senior officials determined that the operation would be conducted consistent with applicable law of war principles, including the cardinal principles of (1) necessity - the requirement that the target have definite military value; (2) distinction- the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted; (3) proportionality- the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated concrete and direct military advantage; and (4) humanity - a principle that requires us to use weapons that will not inflict unnecessary suffering. The operation was also undertaken consistent with Yemeni sovereignty.
While a substantial amount of information indicated that Anwar al-Aulaqi was a senior AQAP leader actively plotting to kill Americans, the decision that he was a lawful target was not taken lightly. The decision to use lethal force is one of the gravest that our government, at every level, can face. The operation to target Anwar al-Aulaqi was thus subjected to an exceptionally rigorous interagency legal review: not only did I and other Department of Justice lawyers conclude after a thorough and searching review that the
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operation was lawful, but so too did other departments and agencies within the U.S. government.
The decision to target Anwar al-Aulaqi was additionally subjected to extensive policy review at the highest levels of the U.S. Government, and senior U.S. officials also briefed the appropriate committees of Congress on the possibility of using lethal force against al-Aulaqi. Indeed, the Administration informed the relevant congressional oversight committees that it had approved the use oflethal force against al-Aulaqi in February 2010- well over a year before the operation in question- and the legal justification was subsequently explained in detail to those committees, well before action was taken against Aulaqi. This extensive outreach is consistent with the Administration's strong and continuing commitment to congressional oversight of our counterterrorism operations - oversight which ensures, as the President stated during his State of the Union address, that our actions are "consistent with our laws and system of checks and balances."
The Supreme Court has long "made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 578, 587 (1952). But the Court's case law and longstanding practice and principle also make clear that the Constitution does not prohibit the Government it establishes from taking action to protect the American people from the threats posed by terrorists who hide in faraway countries and continually plan and launch plots against the U.S. homeland. The decision to target Anwar al-Aulaqi was lawful, it was considered, and it was just.
* * * * *
This letter is only one of a number of steps the Administration will be taking to fulfill the President's State of the Union commitment to engage with Congress and the American people on our counterterrorism efforts. This week the President approved and relevant congressional committees will be notified and briefed on a document that institutionalizes the Administration's exacting standards and processes for reviewing and approving operations to capture or use lethal force against terrorist targets outside the United States and areas of active hostilities; these standards and processes are either already in place or are to be transitioned into place. While that document remains classified, it makes clear that a cornerstone of the Administration's policy is one ofthe principles I noted in my speech at Northwestern: that lethal force should not be used when it is feasible to capture a terrorist suspect. For circumstances in which capture is feasible, the policy outlines standards and procedures to ensure that operations to take into custody a terrorist suspect are conducted in accordance with all applicable law, including the laws of war. When capture is not feasible, the policy provides that lethal force may be used only when a terrorist target poses a continuing, imminent threat to Americans, and when certain other preconditions, including a requirement that no other reasonable alternatives exist to effectively address the threat, are satisfied. And in all circumstances there must be a legal basis for using force against the target. Significantly,
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the President will soon be speaking publicly in greater detail about our counterterrorism operations and the legal and policy framework that governs those actions.
I recognize that even after the Administration makes unprecedented disclosures like those contained in this letter, some unanswered questions will remain. I assure you that the President and his national security team are mindful of this Administration's pledge to public accountability for our counterterrorism efforts, and we will continue to give careful consideration to whether and how additional information may be declassified and disclosed to the American people without harming our national security.
Sincerely,
Eric H. Holder, Jr. Attorney General
cc: Ranking Member Charles Grassley Chairman Dianne Feinstein Vice Chairman Saxby Chambliss Chairman Carl Levin Ranking Member James Inhofe Chairman Bob Goodlatte Ranking Member John Conyers, Jr. Chairman Mike Rogers Ranking Member C.A. Dutch Ruppersberger Chairman Howard P. McKeon Ranking Member Adam Smith Chairman Robert Menendez Ranking Member Bob Corker Chairman Ed Royce Ranking Member Eliot Engel Majority Leader Harry Reid Minority Leader Mitch McConnell Speaker John Boehner Majority Leader Eric Cantor Minority Leader Nancy Pelosi Minority Whip Steny Hoyer
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 EXHIBIT 2
Defendants’ Response to the Court’s May 22, 2013 Order Nasser Al-Aulaqi, et al. v. Panetta, et al., No. 1:12-cv-01192 (RMC)

THE WHITE HOUSE

Office of the Press Secretary

________________________________________________________________

_

For Immediate Release

May 23, 2013

REMARKS BY THE PRESIDENT ON THE FUTURE OF OUR FIGHT AGAINST TERRORISM
National Defense University Fort McNair
Washington, D.C.

2:01 P.M. EDT
THE PRESIDENT: Good afternoon, everybody. Please be seated.
It is a great honor to return to the National Defense University. Here, at Fort McNair, Americans have served in uniform since 1791 -- standing guard in the earliest days of the Republic, and contemplating the future of warfare here in the 21st century.
For over two centuries, the United States has been bound together by founding documents that defined who we are as Americans, and served as our compass through every type of change. Matters of war and peace are no different. Americans are deeply ambivalent about war, but having fought for our independence, we know a price must be paid for freedom. From the Civil War to our struggle against fascism, on through the long twilight struggle of the Cold War, battlefields have changed and technology has evolved. But our commitment to constitutional principles has weathered every war, and every war has come to an end.
With the collapse of the Berlin Wall, a new dawn of democracy took hold abroad, and a decade of peace and prosperity arrived here at home. And for a moment, it seemed the 21st century would be a tranquil time. And then, on September 11, 2001, we were shaken out of complacency. Thousands were taken from us, as clouds of fire and metal and ash descended upon a sun-filled morning. This was a different kind of war. No

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armies came to our shores, and our military was not the principal target. Instead, a group of terrorists came to kill as many civilians as they could.
And so our nation went to war. We have now been at war for well over a decade. I won’t review the full history. What is clear is that we quickly drove al Qaeda out of Afghanistan, but then shifted our focus and began a new war in Iraq. And this carried significant consequences for our fight against al Qaeda, our standing in the world, and -- to this day -- our interests in a vital region.
Meanwhile, we strengthened our defenses -- hardening targets, tightening transportation security, giving law enforcement new tools to prevent terror. Most of these changes were sound. Some caused inconvenience. But some, like expanded surveillance, raised difficult questions about the balance that we strike between our interests in security and our values of privacy. And in some cases, I believe we compromised our basic values -- by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law.
So after I took office, we stepped up the war against al Qaeda but we also sought to change its course. We relentlessly targeted al Qaeda’s leadership. We ended the war in Iraq, and brought nearly 150,000 troops home. We pursued a new strategy in Afghanistan, and increased our training of Afghan forces. We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.
Today, Osama bin Laden is dead, and so are most of his top lieutenants. There have been no large-scale attacks on the United States, and our homeland is more secure. Fewer of our troops are in harm’s way, and over the next 19 months they will continue to come home. Our alliances are strong, and so is our standing in the world. In sum, we are safer because of our efforts.
Now, make no mistake, our nation is still threatened by terrorists. From Benghazi to Boston, we have been tragically reminded of that truth. But we have to recognize that the threat has shifted and evolved from the one that came to our shores on 9/11. With a decade of experience now to draw from, this is the moment to ask ourselves hard questions -- about the nature of today’s threats and how we should confront them.
And these questions matter to every American.
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For over the last decade, our nation has spent well over a trillion dollars on war, helping to explode our deficits and constraining our ability to nation-build here at home. Our servicemembers and their families have sacrificed far more on our behalf. Nearly 7,000 Americans have made the ultimate sacrifice. Many more have left a part of themselves on the battlefield, or brought the shadows of battle back home. From our use of drones to the detention of terrorist suspects, the decisions that we are making now will define the type of nation -- and world -- that we leave to our children.
So America is at a crossroads. We must define the nature and scope of this struggle, or else it will define us. We have to be mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.” Neither I, nor any President, can promise the total defeat of terror. We will never erase the evil that lies in the hearts of some human beings, nor stamp out every danger to our open society. But what we can do -- what we must do -- is dismantle networks that pose a direct danger to us, and make it less likely for new groups to gain a foothold, all the while maintaining the freedoms and ideals that we defend. And to define that strategy, we have to make decisions based not on fear, but on hard-earned wisdom. That begins with understanding the current threat that we face.
Today, the core of al Qaeda in Afghanistan and Pakistan is on the path to defeat. Their remaining operatives spend more time thinking about their own safety than plotting against us. They did not direct the attacks in Benghazi or Boston. They’ve not carried out a successful attack on our homeland since 9/11.
Instead, what we’ve seen is the emergence of various al Qaeda affiliates. From Yemen to Iraq, from Somalia to North Africa, the threat today is more diffuse, with Al Qaeda’s affiliates in the Arabian Peninsula -- AQAP -- the most active in plotting against our homeland. And while none of AQAP’s efforts approach the scale of 9/11, they have continued to plot acts of terror, like the attempt to blow up an airplane on Christmas Day in 2009.
Unrest in the Arab world has also allowed extremists to gain a foothold in countries like Libya and Syria. But here, too, there are differences from 9/11. In some cases, we continue to confront state-sponsored networks like Hezbollah that engage in acts of terror to achieve political goals. Other of these groups are simply collections of local militias or
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extremists interested in seizing territory. And while we are vigilant for signs that these groups may pose a transnational threat, most are focused on operating in the countries and regions where they are based. And that means we'll face more localized threats like what we saw in Benghazi, or the BP oil facility in Algeria, in which local operatives -- perhaps in loose affiliation with regional networks -- launch periodic attacks against Western diplomats, companies, and other soft targets, or resort to kidnapping and other criminal enterprises to fund their operations.
And finally, we face a real threat from radicalized individuals here in the United States. Whether it’s a shooter at a Sikh Temple in Wisconsin, a plane flying into a building in Texas, or the extremists who killed 168 people at the Federal Building in Oklahoma City, America has confronted many forms of violent extremism in our history. Deranged or alienated individuals -- often U.S. citizens or legal residents -- can do enormous damage, particularly when inspired by larger notions of violent jihad. And that pull towards extremism appears to have led to the shooting at Fort Hood and the bombing of the Boston Marathon.
So that’s the current threat -- lethal yet less capable al Qaeda affiliates; threats to diplomatic facilities and businesses abroad; homegrown extremists. This is the future of terrorism. We have to take these threats seriously, and do all that we can to confront them. But as we shape our response, we have to recognize that the scale of this threat closely resembles the types of attacks we faced before 9/11.
In the 1980s, we lost Americans to terrorism at our Embassy in Beirut; at our Marine Barracks in Lebanon; on a cruise ship at sea; at a disco in Berlin; and on a Pan Am flight -- Flight 103 -- over Lockerbie. In the 1990s, we lost Americans to terrorism at the World Trade Center; at our military facilities in Saudi Arabia; and at our Embassy in Kenya. These attacks were all brutal; they were all deadly; and we learned that left unchecked, these threats can grow. But if dealt with smartly and proportionally, these threats need not rise to the level that we saw on the eve of 9/11.
Moreover, we have to recognize that these threats don’t arise in a vacuum. Most, though not all, of the terrorism we faced is fueled by a common ideology -- a belief by some extremists that Islam is in conflict with the United States and the West, and that violence against Western targets, including civilians, is justified in pursuit of a larger cause. Of
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course, this ideology is based on a lie, for the United States is not at war with Islam. And this ideology is rejected by the vast majority of Muslims, who are the most frequent victims of terrorist attacks.
Nevertheless, this ideology persists, and in an age when ideas and images can travel the globe in an instant, our response to terrorism can’t depend on military or law enforcement alone. We need all elements of national power to win a battle of wills, a battle of ideas. So what I want to discuss here today is the components of such a comprehensive counterterrorism strategy.
First, we must finish the work of defeating al Qaeda and its associated forces.
In Afghanistan, we will complete our transition to Afghan responsibility for that country’s security. Our troops will come home. Our combat mission will come to an end. And we will work with the Afghan government to train security forces, and sustain a counterterrorism force, which ensures that al Qaeda can never again establish a safe haven to launch attacks against us or our allies.
Beyond Afghanistan, we must define our effort not as a boundless “global war on terror,” but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America. In many cases, this will involve partnerships with other countries. Already, thousands of Pakistani soldiers have lost their lives fighting extremists. In Yemen, we are supporting security forces that have reclaimed territory from AQAP. In Somalia, we helped a coalition of African nations push al-Shabaab out of its strongholds. In Mali, we’re providing military aid to Frenchled intervention to push back al Qaeda in the Maghreb, and help the people of Mali reclaim their future.
Much of our best counterterrorism cooperation results in the gathering and sharing of intelligence, the arrest and prosecution of terrorists. And that’s how a Somali terrorist apprehended off the coast of Yemen is now in a prison in New York. That’s how we worked with European allies to disrupt plots from Denmark to Germany to the United Kingdom. That’s how intelligence collected with Saudi Arabia helped us stop a cargo plane from being blown up over the Atlantic. These partnerships work.
But despite our strong preference for the detention and prosecution of terrorists, sometimes this approach is
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foreclosed. Al Qaeda and its affiliates try to gain foothold in some of the most distant and unforgiving places on Earth. They take refuge in remote tribal regions. They hide in caves and walled compounds. They train in empty deserts and rugged mountains.
In some of these places -- such as parts of Somalia and Yemen -- the state only has the most tenuous reach into the territory. In other cases, the state lacks the capacity or will to take action. And it’s also not possible for America to simply deploy a team of Special Forces to capture every terrorist. Even when such an approach may be possible, there are places where it would pose profound risks to our troops and local civilians -- where a terrorist compound cannot be breached without triggering a firefight with surrounding tribal communities, for example, that pose no threat to us; times when putting U.S. boots on the ground may trigger a major international crisis.
To put it another way, our operation in Pakistan against Osama bin Laden cannot be the norm. The risks in that case were immense. The likelihood of capture, although that was our preference, was remote given the certainty that our folks would confront resistance. The fact that we did not find ourselves confronted with civilian casualties, or embroiled in an extended firefight, was a testament to the meticulous planning and professionalism of our Special Forces, but it also depended on some luck. And it was supported by massive infrastructure in Afghanistan.
And even then, the cost to our relationship with Pakistan - and the backlash among the Pakistani public over encroachment on their territory -- was so severe that we are just now beginning to rebuild this important partnership.
So it is in this context that the United States has taken lethal, targeted action against al Qaeda and its associated forces, including with remotely piloted aircraft commonly referred to as drones.
As was true in previous armed conflicts, this new technology raises profound questions -- about who is targeted, and why; about civilian casualties, and the risk of creating new enemies; about the legality of such strikes under U.S. and international law; about accountability and morality. So let me address these questions.
To begin with, our actions are effective. Don’t take my word for it. In the intelligence gathered at bin Laden’s
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compound, we found that he wrote, “We could lose the reserves to enemy’s air strikes. We cannot fight air strikes with explosives.” Other communications from al Qaeda operatives confirm this as well. Dozens of highly skilled al Qaeda commanders, trainers, bomb makers and operatives have been taken off the battlefield. Plots have been disrupted that would have targeted international aviation, U.S. transit systems, European cities and our troops in Afghanistan. Simply put, these strikes have saved lives.
Moreover, America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war -- a war waged proportionally, in last resort, and in self-defense.
And yet, as our fight enters a new phase, America’s legitimate claim of self-defense cannot be the end of the discussion. To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance. For the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power -- or risk abusing it. And that’s why, over the last four years, my administration has worked vigorously to establish a framework that governs our use of force against terrorists –- insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance that I signed yesterday.
In the Afghan war theater, we must -- and will -- continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes.
Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty.
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America does not take strikes to punish individuals; we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured -- the highest standard we can set.
Now, this last point is critical, because much of the criticism about drone strikes -- both here at home and abroad -understandably centers on reports of civilian casualties. There’s a wide gap between U.S. assessments of such casualties and nongovernmental reports. Nevertheless, it is a hard fact that U.S. strikes have resulted in civilian casualties, a risk that exists in every war. And for the families of those civilians, no words or legal construct can justify their loss. For me, and those in my chain of command, those deaths will haunt us as long as we live, just as we are haunted by the civilian casualties that have occurred throughout conventional fighting in Afghanistan and Iraq.
But as Commander-in-Chief, I must weigh these heartbreaking tragedies against the alternatives. To do nothing in the face of terrorist networks would invite far more civilian casualties - not just in our cities at home and our facilities abroad, but also in the very places like Sana’a and Kabul and Mogadishu where terrorists seek a foothold. Remember that the terrorists we are after target civilians, and the death toll from their acts of terrorism against Muslims dwarfs any estimate of civilian casualties from drone strikes. So doing nothing is not an option.
Where foreign governments cannot or will not effectively stop terrorism in their territory, the primary alternative to targeted lethal action would be the use of conventional military options. As I’ve already said, even small special operations carry enormous risks. Conventional airpower or missiles are far less precise than drones, and are likely to cause more civilian casualties and more local outrage. And invasions of these territories lead us to be viewed as occupying armies, unleash a torrent of unintended consequences, are difficult to contain, result in large numbers of civilian casualties and ultimately empower those who thrive on violent conflict.
So it is false to assert that putting boots on the ground is less likely to result in civilian deaths or less likely to create enemies in the Muslim world. The results would be more U.S. deaths, more Black Hawks down, more confrontations with
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local populations, and an inevitable mission creep in support of such raids that could easily escalate into new wars.
Yes, the conflict with al Qaeda, like all armed conflict, invites tragedy. But by narrowly targeting our action against those who want to kill us and not the people they hide among, we are choosing the course of action least likely to result in the loss of innocent life.
Our efforts must be measured against the history of putting American troops in distant lands among hostile populations. In Vietnam, hundreds of thousands of civilians died in a war where the boundaries of battle were blurred. In Iraq and Afghanistan, despite the extraordinary courage and discipline of our troops, thousands of civilians have been killed. So neither conventional military action nor waiting for attacks to occur offers moral safe harbor, and neither does a sole reliance on law enforcement in territories that have no functioning police or security services -- and indeed, have no functioning law.
Now, this is not to say that the risks are not real. Any U.S. military action in foreign lands risks creating more enemies and impacts public opinion overseas. Moreover, our laws constrain the power of the President even during wartime, and I have taken an oath to defend the Constitution of the United States. The very precision of drone strikes and the necessary secrecy often involved in such actions can end up shielding our government from the public scrutiny that a troop deployment invites. It can also lead a President and his team to view drone strikes as a cure-all for terrorism.
And for this reason, I’ve insisted on strong oversight of all lethal action. After I took office, my administration began briefing all strikes outside of Iraq and Afghanistan to the appropriate committees of Congress. Let me repeat that: Not only did Congress authorize the use of force, it is briefed on every strike that America takes. Every strike. That includes the one instance when we targeted an American citizen -- Anwar Awlaki, the chief of external operations for AQAP.
This week, I authorized the declassification of this action, and the deaths of three other Americans in drone strikes, to facilitate transparency and debate on this issue and to dismiss some of the more outlandish claims that have been made. For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen -- with a drone, or with a shotgun -- without due
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process, nor should any President deploy armed drones over U.S. soil.
But when a U.S. citizen goes abroad to wage war against America and is actively plotting to kill U.S. citizens, and when neither the United States, nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team.
That’s who Anwar Awlaki was -- he was continuously trying to kill people. He helped oversee the 2010 plot to detonate explosive devices on two U.S.-bound cargo planes. He was involved in planning to blow up an airliner in 2009. When Farouk Abdulmutallab -- the Christmas Day bomber -- went to Yemen in 2009, Awlaki hosted him, approved his suicide operation, helped him tape a martyrdom video to be shown after the attack, and his last instructions were to blow up the airplane when it was over American soil. I would have detained and prosecuted Awlaki if we captured him before he carried out a plot, but we couldn’t. And as President, I would have been derelict in my duty had I not authorized the strike that took him out.
Of course, the targeting of any American raises constitutional issues that are not present in other strikes -which is why my administration submitted information about Awlaki to the Department of Justice months before Awlaki was killed, and briefed the Congress before this strike as well. But the high threshold that we’ve set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens. This threshold respects the inherent dignity of every human life. Alongside the decision to put our men and women in uniform in harm’s way, the decision to use force against individuals or groups -- even against a sworn enemy of the United States -- is the hardest thing I do as President. But these decisions must be made, given my responsibility to protect the American people.
Going forward, I’ve asked my administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested -- the establishment of an
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independent oversight board in the executive branch -- avoids those problems, but may introduce a layer of bureaucracy into national security decision-making, without inspiring additional public confidence in the process. But despite these challenges, I look forward to actively engaging Congress to explore these and other options for increased oversight.
I believe, however, that the use of force must be seen as part of a larger discussion we need to have about a comprehensive counterterrorism strategy -- because for all the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere that a radical ideology takes root; and in the absence of a strategy that reduces the wellspring of extremism, a perpetual war -- through drones or Special Forces or troop deployments -- will prove self-defeating, and alter our country in troubling ways.
So the next element of our strategy involves addressing the underlying grievances and conflicts that feed extremism -- from North Africa to South Asia. As we’ve learned this past decade, this is a vast and complex undertaking. We must be humble in our expectation that we can quickly resolve deep-rooted problems like poverty and sectarian hatred. Moreover, no two countries are alike, and some will undergo chaotic change before things get better. But our security and our values demand that we make the effort.
This means patiently supporting transitions to democracy in places like Egypt and Tunisia and Libya -- because the peaceful realization of individual aspirations will serve as a rebuke to violent extremists. We must strengthen the opposition in Syria, while isolating extremist elements -- because the end of a tyrant must not give way to the tyranny of terrorism. We are actively working to promote peace between Israelis and Palestinians -- because it is right and because such a peace could help reshape attitudes in the region. And we must help countries modernize economies, upgrade education, and encourage entrepreneurship -- because American leadership has always been elevated by our ability to connect with people’s hopes, and not simply their fears.
And success on all these fronts requires sustained engagement, but it will also require resources. I know that foreign aid is one of the least popular expenditures that there is. That’s true for Democrats and Republicans -- I’ve seen the polling -- even though it amounts to less than one percent of the federal budget. In fact, a lot of folks think it’s 25 percent, if you ask people on the streets. Less than one
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percent -- still wildly unpopular. But foreign assistance cannot be viewed as charity. It is fundamental to our national security. And it’s fundamental to any sensible long-term strategy to battle extremism.
Moreover, foreign assistance is a tiny fraction of what we spend fighting wars that our assistance might ultimately prevent. For what we spent in a month in Iraq at the height of the war, we could be training security forces in Libya, maintaining peace agreements between Israel and its neighbors, feeding the hungry in Yemen, building schools in Pakistan, and creating reservoirs of goodwill that marginalize extremists. That has to be part of our strategy.
Moreover, America cannot carry out this work if we don’t have diplomats serving in some very dangerous places. Over the past decade, we have strengthened security at our embassies, and I am implementing every recommendation of the Accountability Review Board, which found unacceptable failures in Benghazi. I’ve called on Congress to fully fund these efforts to bolster security and harden facilities, improve intelligence, and facilitate a quicker response time from our military if a crisis emerges.
But even after we take these steps, some irreducible risks to our diplomats will remain. This is the price of being the world’s most powerful nation, particularly as a wave of change washes over the Arab World. And in balancing the trade4offs between security and active diplomacy, I firmly believe that any retreat from challenging regions will only increase the dangers that we face in the long run. And that's why we should be grateful to those diplomats who are willing to serve.
Targeted action against terrorists, effective partnerships, diplomatic engagement and assistance -- through such a comprehensive strategy we can significantly reduce the chances of large-scale attacks on the homeland and mitigate threats to Americans overseas. But as we guard against dangers from abroad, we cannot neglect the daunting challenge of terrorism from within our borders.
As I said earlier, this threat is not new. But technology and the Internet increase its frequency and in some cases its lethality. Today, a person can consume hateful propaganda, commit themselves to a violent agenda, and learn how to kill without leaving their home. To address this threat, two years ago my administration did a comprehensive review and engaged with law enforcement.
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And the best way to prevent violent extremism inspired by violent jihadists is to work with the Muslim American community -- which has consistently rejected terrorism -- to identify signs of radicalization and partner with law enforcement when an individual is drifting towards violence. And these partnerships can only work when we recognize that Muslims are a fundamental part of the American family. In fact, the success of American Muslims and our determination to guard against any encroachments on their civil liberties is the ultimate rebuke to those who say that we’re at war with Islam.
Thwarting homegrown plots presents particular challenges in part because of our proud commitment to civil liberties for all who call America home. That’s why, in the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are. That means reviewing the authorities of law enforcement, so we can intercept new types of communication, but also build in privacy protections to prevent abuse.
That means that -- even after Boston -- we do not deport someone or throw somebody in prison in the absence of evidence. That means putting careful constraints on the tools the government uses to protect sensitive information, such as the state secrets doctrine. And that means finally having a strong Privacy and Civil Liberties Board to review those issues where our counterterrorism efforts and our values may come into tension.
The Justice Department’s investigation of national security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society. As Commander-in-Chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information. But a free press is also essential for our democracy. That’s who we are. And I’m troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.
Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law. And that’s why I’ve called on Congress to pass a media shield law to guard against government overreach. And I’ve raised these issues with the Attorney General, who shares my concerns. So he has agreed
Ex. 2 - 13

to review existing Department of Justice guidelines governing investigations that involve reporters, and he’ll convene a group of media organizations to hear their concerns as part of that review. And I’ve directed the Attorney General to report back to me by July 12th.
Now, all these issues remind us that the choices we make about war can impact -- in sometimes unintended ways -- the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing.
The AUMF is now nearly 12 years old. The Afghan war is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states.
So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.
And that brings me to my final topic: the detention of terrorist suspects. I’m going to repeat one more time: As a matter of policy, the preference of the United States is to capture terrorist suspects. When we do detain a suspect, we interrogate them. And if the suspect can be prosecuted, we decide whether to try him in a civilian court or a military commission.
During the past decade, the vast majority of those detained by our military were captured on the battlefield. In Iraq, we turned over thousands of prisoners as we ended the war. In Afghanistan, we have transitioned detention facilities to the Afghans, as part of the process of restoring Afghan sovereignty. So we bring law of war detention to an end, and we are committed to prosecuting terrorists wherever we can.
Ex. 2 - 14

The glaring exception to this time-tested approach is the detention center at Guantanamo Bay. The original premise for opening GTMO -- that detainees would not be able to challenge their detention -- was found unconstitutional five years ago. In the meantime, GTMO has become a symbol around the world for an America that flouts the rule of law. Our allies won’t cooperate with us if they think a terrorist will end up at GTMO.
During a time of budget cuts, we spend $150 million each year to imprison 166 people -- almost $1 million per prisoner. And the Department of Defense estimates that we must spend another $200 million to keep GTMO open at a time when we’re cutting investments in education and research here at home, and when the Pentagon is struggling with sequester and budget cuts.
As President, I have tried to close GTMO. I transferred 67 detainees to other countries before Congress imposed restrictions to effectively prevent us from either transferring detainees to other countries or imprisoning them here in the United States.
These restrictions make no sense. After all, under President Bush, some 530 detainees were transferred from GTMO with Congress’s support. When I ran for President the first time, John McCain supported closing GTMO -- this was a bipartisan issue. No person has ever escaped one of our supermax or military prisons here in the United States -- ever. Our courts have convicted hundreds of people for terrorism or terrorism-related offenses, including some folks who are more dangerous than most GTMO detainees. They're in our prisons.
And given my administration’s relentless pursuit of al Qaeda’s leadership, there is no justification beyond politics for Congress to prevent us from closing a facility that should have never have been opened. (Applause.)
AUDIENCE MEMBER: Excuse me, President Obama --
THE PRESIDENT: So -- let me finish, ma'am. So today, once again --
AUDIENCE MEMBER: There are 102 people on a hunger strike. These are desperate people.
THE PRESIDENT: I'm about to address it, ma'am, but you've got to let me speak. I'm about to address it.
Ex. 2 - 15

AUDIENCE MEMBER: You're our Commander-In-Chief --
THE PRESIDENT: Let me address it.
AUDIENCE MEMBER: -- you an close Guantanamo Bay.
THE PRESIDENT: Why don’t you let me address it, ma'am.
AUDIENCE MEMBER: There’s still prisoners --
THE PRESIDENT: Why don’t you sit down and I will tell you exactly what I'm going to do.
AUDIENCE MEMBER: That includes 57 Yemenis.
THE PRESIDENT: Thank you, ma'am. Thank you. (Applause.) Ma'am, thank you. You should let me finish my sentence.
Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO. (Applause.)
I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. I’m appointing a new senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries.
I am lifting the moratorium on detainee transfers to Yemen so we can review them on a case-by-case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries.
AUDIENCE MEMBER: -- prisoners already. Release them today.
THE PRESIDENT: Where appropriate, we will bring terrorists to justice in our courts and our military justice system. And we will insist that judicial review be available for every detainee.
AUDIENCE MEMBER: It needs to be --
THE PRESIDENT: Now, ma'am, let me finish. Let me finish, ma'am. Part of free speech is you being able to speak, but also, you listening and me being able to speak. (Applause.)
Now, even after we take these steps one issue will remain - just how to deal with those GTMO detainees who we know have participated in dangerous plots or attacks but who cannot be prosecuted, for example, because the evidence against them has
Ex. 2 - 16

been compromised or is inadmissible in a court of law. But once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.
I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it. Imagine a future -- 10 years from now or 20 years from now -- when the United States of America is still holding people who have been charged with no crime on a piece of land that is not part of our country. Look at the current situation, where we are force-feeding detainees who are being held on a hunger strike. I'm willing to cut the young lady who interrupted me some slack because it's worth being passionate about. Is this who we are? Is that something our Founders foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that.
We have prosecuted scores of terrorists in our courts. That includes Umar Farouk Abdulmutallab, who tried to blow up an airplane over Detroit; and Faisal Shahzad, who put a car bomb in Times Square. It's in a court of law that we will try Dzhokhar Tsarnaev, who is accused of bombing the Boston Marathon. Richard Reid, the shoe bomber, is, as we speak, serving a life sentence in a maximum security prison here in the United States. In sentencing Reid, Judge William Young told him, “The way we treat you…is the measure of our own liberties.”
AUDIENCE MEMBER: How about Abdulmutallab -- locking up a 16-year-old -- is that the way we treat a 16-year old? (Inaudible) -- can you take the drones out of the hands of the CIA? Can you stop the signature strikes killing people on the basis of suspicious activities?
THE PRESIDENT: We’re addressing that, ma’am.
AUDIENCE MEMBER: -- thousands of Muslims that got killed - will you compensate the innocent families -- that will make us safer here at home. I love my country. I love (inaudible) --
THE PRESIDENT: I think that -- and I’m going off script, as you might expect here. (Laughter and applause.) The voice of that woman is worth paying attention to. (Applause.) Obviously, I do not agree with much of what she said, and obviously she wasn’t listening to me in much of what I said. But these are tough issues, and the suggestion that we can gloss over them is wrong.
Ex. 2 - 17

When that judge sentenced Mr. Reid, the shoe bomber, he went on to point to the American flag that flew in the courtroom. “That flag,” he said, “will fly there long after this is all forgotten. That flag still stands for freedom.”
So, America, we’ve faced down dangers far greater than al Qaeda. By staying true to the values of our founding, and by using our constitutional compass, we have overcome slavery and Civil War and fascism and communism. In just these last few years as President, I’ve watched the American people bounce back from painful recession, mass shootings, natural disasters like the recent tornados that devastated Oklahoma. These events were heartbreaking; they shook our communities to the core. But because of the resilience of the American people, these events could not come close to breaking us.
I think of Lauren Manning, the 9/11 survivor who had severe burns over 80 percent of her body, who said, “That’s my reality. I put a Band-Aid on it, literally, and I move on.”
I think of the New Yorkers who filled Times Square the day after an attempted car bomb as if nothing had happened.
I think of the proud Pakistani parents who, after their daughter was invited to the White House, wrote to us, “We have raised an American Muslim daughter to dream big and never give up because it does pay off.”
I think of all the wounded warriors rebuilding their lives, and helping other vets to find jobs.
I think of the runner planning to do the 2014 Boston Marathon, who said, “Next year, you’re going to have more people than ever. Determination is not something to be messed with.”
That’s who the American people are -- determined, and not to be messed with. And now we need a strategy and a politics that reflects this resilient spirit.
Our victory against terrorism won’t be measured in a surrender ceremony at a battleship, or a statue being pulled to the ground. Victory will be measured in parents taking their kids to school; immigrants coming to our shores; fans taking in a ballgame; a veteran starting a business; a bustling city street; a citizen shouting her concerns at a President.
The quiet determination; that strength of character and bond of fellowship; that refutation of fear -- that is both our
Ex. 2 - 18

sword and our shield. And long after the current messengers of hate have faded from the world’s memory, alongside the brutal despots, and deranged madmen, and ruthless demagogues who litter history -- the flag of the United States will still wave from small-town cemeteries to national monuments, to distant outposts abroad. And that flag will still stand for freedom.
Thank you very, everybody. God bless you. May God bless the United States of America. (Applause.)

END

3:00 P.M. EDT

----Ex. 2 - 19

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________

)

NASSER AL-AULAQI,

)

as personal representative of the

)

Estates of ANWAR AL-AULAQI and )

ABDULRAHMAN AL-AULAQI, et al., )

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 12-1192 (RMC)

)

LEON C. PANETTA, et al.,

)

)

Defendants.

)

_________________________________ )

OPINION 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
1

answer. However, on these facts and under this Circuit’s precedent, the Court will grant Defendants’ motion to dismiss.
I. FACTS 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)1 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).2 Government officials told reporters that Anwar Al-Aulaqi had “cast his lot” with terrorist groups, encouraged
1 JSOC is a component of the Department of Defense. 2 See Dep’t of Justice White Paper, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force, (Nov. 8, 2011 draft), http://bit.ly/Wv7Cdh (last visited Apr. 4, 2014).
2

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),3 and Admiral William H. McRaven, former Commander of JSOC,4 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 Defense in their official capacities. See Al-Aulaqi v. Obama, Civ. No. 10-1469
(D.D.C.), Compl. filed Aug. 30, 2010. That suit, captioned Al-Aulaqi v. Obama, sought to enjoin
the Government from carrying out the planned killing of Anwar Al-Aulaqi unless “he presented
a concrete, specific, and imminent threat to life, and that there were no reasonably available
measures short of lethal force that could be expected to address that threat.” Compl. [Dkt. 3]
¶ 27 (describing prior suit). The United States moved to dismiss the complaint and invoked the “military and state secrets” privilege.5 See Al-Aulaqi v. Obama, Civ. No. 10-1469, Mot. to
Dismiss (filed Sept. 25, 2010). In support of the privilege, the Government submitted both
unclassified and classified declarations from James Clapper, Director of National Intelligence;
3 Mr. Panetta served as Director of the CIA from February 13, 2009 to June 30, 2011, and as Secretary of Defense from July 1, 2011 to February 27, 2013. 4 Admiral McRaven was JSOC Commander from June 2008 to June 2011. See U.S. Navy Biography of Admiral McRaven, http://www.navy.mil/navydata/bios/navybio.asp?bioID=401 (last visited Apr. 4, 2014). 5 The state secrets privilege encompasses two applications: one completely bars adjudication of claims based on state secrets, which requires dismissal, and the other excludes privileged evidence from the case, which may result in dismissal. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1077 (9th Cir. 2010) (en banc). “The state secrets privilege is premised on the recognition that ‘in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely.’” Id. (citing Totten v. United States, 92 U.S. 105, 107 (1876)).
3

Robert Gates, then-Secretary of Defense; and Leon Panetta, then-Director of the CIA. See id., Mot. to Dismiss, Ex. 1 (Clapper Decl.), Ex. 4 (Gates Decl.), & Ex. 5 (Panetta Decl.). While invoking the state secrets privilege, the Government advised the district court that it need not and should not reach the privilege issue because the case could be resolved on other grounds. Agreeing with the Government, Judge John Bates did not address the issue of state secrets and instead resolved the case on different legal principles. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 52-54 (D.D.C. 2010). Judge Bates dismissed the suit, finding that Nasser Al-Aulaqi did not have standing to assert his son’s constitutional rights, see id. at 14-35, and that at least some of the issues raised were non-justiciable political questions, see id. at 44-52. Nasser Al-Aulaqi did not appeal.
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.
4

While it was reported that Mr. Al-Banna was not killed, the strike did kill at least seven people, including Abdulrahman Al-Aulaqi. Id.
B. Designation of Anwar Al-Aulaqi as a Terrorist 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 Designated Global Terrorist, expressly finding him to be a key leader of AQAP. See Designation of Anwar Al-Aulaqi Pursuant to Executive Order 13224 and Global Terrorism Sanctions Regulations, 75 Fed. Reg. 43,233-01 (July 23, 2010) (publically announced July 12, 2010). Executive Order 13224,6 issued by President George W. Bush on September 23, 2001, declared a national emergency for the purpose of addressing grave acts of terrorism and threats of terrorism. The Executive Order authorized the imposition of economic sanctions on named persons and entities who have committed, pose a significant risk of committing, or support acts of terrorism. To implement the Order, the Secretary of the Treasury promulgated Global Terrorism Sanctions Regulations, see 31 C.F.R. Part 594, and delegated his authority over the Sanctions Regulations to the Director of the Office of Foreign Assets Control (OFAC), see 31 C.F.R. § 594.802.
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,
6 Executive Order 13224 was issued pursuant to the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706, and the United Nations Participation Act of 1945, 22 U.S.C. § 287c.
5

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:
ANWAR AL-AULAQI, a dual U.S.-Yemeni citizen, is a leader of al-Qa’ida in the Arab Peninsula (AQAP), a Yemen-based terrorist group7 that has claimed responsibility for numerous terrorist acts8 against Saudi, Korean, Yemeni, and U.S. targets since its inception in January 2009. ANWAR AL-AULAQI has pledged an oath of loyalty to AQAP emir, Nasir al-Wahishi, and is playing a key role in setting the strategic direction for AQAP. ANWAR ALAULAQI has also recruited individuals to join AQAP, facilitated training at camps in Yemen in support of acts of terrorism, and helped focus AQAP’s attention on planning attacks on U.S. interests.
Since late 2009, ANWAR AL-AULAQI has taken on an increasingly operational role in the group, including preparing Umar Farouk Abdulmutallab, who attempted to detonate an explosive device aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation.
7 It is the Executive Branch’s position that AQAP is a Yemen-based terrorist group that is either part of, or associated with, al-Qa’ida. See Statement of Michael Leiter, Director of the National Counterterrorism Center, Senate Homeland Security and Government Affairs Committee, “Nine Years After 9/11: Confronting the Terrorist Threat to the Homeland,” Sept. 22, 2010 (Director Leiter Statement) at 2, 4-5 (found in record of related case, Al-Aulaqi v. Obama, Civ. No. 10-cv1469, Mot. to Dismiss, Ex. 3). Director Leiter indicated that “[w]e witnessed the reemergence of AQAP in early 2009 and continue to view Yemen as a key battleground and potential regional base of operations from which AQAP can plan attacks, train recruits, and facilitate the movement of operatives.” Id. at 4. As explained below, the Court takes judicial notice of certain positions of the Executive Branch identified in this Opinion.
8 These include: the March 2009 suicide bombing against South Korean tourists in Yemen; the August 2009 attempt to assassinate Saudi Prince Muhammad bin Nayif; the December 25, 2009 failed mid-air bombing of Northwest Flight 253 from Amsterdam to Detroit, Michigan; and the April 26, 2010 attempted assassination of the United Kingdom’s Ambassador to Yemen in Sana’a. U.S. Statement of Interest [Dkt. 19], Ex. 1 [Dkt. 19-1] (Clapper Decl.) ¶ 13.
6

In November 2009, while in Yemen, Abdulmutallab swore allegiance to the emir of AQAP and shortly thereafter received instructions from ANWAR AL-AULAQI to detonate an explosive device aboard a U.S. airplane over U.S. airspace. After receiving this direction from ANWAR AL-AULAQI, Abdulmutallab obtained the explosive device he used in the attempted Christmas Day attack.
ANWAR AL-AULAQI was imprisoned in Yemen in 2006 on charges of kidnapping for ransom and being involved in an alQa’ida plot to kidnap a U.S. official, but was released from jail in December 2007 and subsequently went into hiding in Yemen. 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
7

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 AlAulaqi. 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 martyrdom mission with Anwar Al-Aulaqi, and Anwar Al-Aulaqi gave his final approval. Id. Over the next few weeks, Mr. Al Asiri constructed a bomb for the suicide mission and trained Mr. Abdulmutallab in its use. Id. at 1314. Anwar Al-Aulaqi also assisted Mr. Abdulmutallab in writing a martyrdom statement and making a martyrdom video. Id. at 14. Anwar Al-Aulaqi’s final instructions to Mr. Abdulmutallab were to attack a U.S. airliner over U.S. soil. Id. The bomb constructed by Mr. Al Asiri was the bomb that Mr. Abdulmutallab carried in his underwear on board a Northwest Airlines flight on December 25, 2009, and was the bomb that he unsuccessfully attempted to detonate when the plane, carrying 289 passengers, was close to landing in Detroit, Michigan.9 Id. at 14; see Abdulmutallab, 739 F.3d at 895.
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
9 Mr. Abdulmutallab is known nationally as the “underwear bomber.” Abdulmutallab, 739 F.3d at 895.
8

Hood, Texas.10 See Al-Aulaqi v. Obama, 727 F. Supp. 2d at 10. Anwar Al-Aulaqi and Major
Hasan exchanged eighteen emails prior to the Fort Hood shootings. Id. In a May 2010 video
interview of Anwar Al-Aulaqi,11 he called for “jihad against America,” praised the actions of his
“students” (naming Mr. Abdulmutallab and Major Hasan), and asked others to follow. Id.; see
also Clapper Decl. ¶ 16.12 In the same May 2010 interview, Anwar Al-Aulaqi declared that he
“will never surrender” to the United States. Al-Aulaqi v. Obama, 727 F. Supp. 2d at 11; Clapper
Decl. ¶ 16. In July 2010, Anwar Al-Aulaqi wrote an article for the AQAP publication Inspire in
which he asserted that because Western “government, political parties, the police, [and] the
intelligence services . . . are part of a system within which the defamation of Islam is . . .
promoted . . . [,] the attacking of any Western target [is] legal from an Islamic viewpoint.” Al-
Aulaqi v. Obama, 727 F. Supp. 2d at 21. He elaborated on his theme and urged that a U.S.
civilian who drew a cartoon depiction of Mohammed should be “a prime target of assassination”
10 On August 13, 2013, in a court martial proceeding, a jury convicted Major Hasan and sentenced him to death. Billy Kenber, Nidal Hasan Sentenced to Death for Fort Hood Shooting Rampage, Wash. Post, Aug. 28, 2013. 11 Al-Malahem Media Production, the official media arm of AQAP, posted the video interview online. Clapper Decl. ¶ 16; see Partial English Transcript of Interview of Anwar al-Awlaki (May 26, 2010), http://publicintelligence.net/anwar-al-awlaki-may-2010-interview-video/ (last visited Apr. 4, 2014); May 2010 Video Interview of Anwar Al-Awlaki With English Subtitles, http://www.muslimvideo.com/tv/watch/2fdd60665099993430d6/(May-2010)-Interview-WithAnwar-Al-Awlaki(Arabic/Eng.Subs) (last visited Apr. 4, 2014). 12 While the United States is not a party to this case, it filed a Statement of Interest, explaining that the allegations set forth in the Complaint include allegations regarding information covered by the state secrets privilege, and reserving the right to raise the privilege if the Court denies Defendants’ motion to dismiss. See U.S. Statement of Interest ¶¶ 9-10. The Statement of Interest was filed pursuant to 28 U.S.C. § 517, which provides that “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” The United States filed an unclassified version of the Clapper Declaration, but did not submit the classified version to this Court.
9

and that “[a]ssassinations, bombings, and acts of arson” are “legitimate forms of revenge against
a system that relishes the sacrilege of Islam in the name of freedom.” Id.
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:
Moreover, information that remains classified to protect sensitive sources and methods evidences al-Aulaqi’s involvement in the planning of numerous other plots against U.S. and Western interests and makes clear he was continuing to plot attacks when he was killed.
Based on this information, high level officials appropriately concluded that al-Aulaqi posed a continuing and imminent threat of violent attack against the United States. Before carrying out the operation that killed al-Aulaqi, senior officials also determined, based on a careful evaluation of the circumstances at the time, that it was not feasible to capture him.
Id. (emphasis in original);13 see also President Obama Speech at 10 (stating that Anwar Al-
Aulaqi “was continuously trying to kill people” and that he “helped oversee the 2010 plot to
13 Attorney General Holder further explained the Executive Branch’s position regarding the circumstances under which lethal force may be used:
Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during the current conflict, it is clear and logical that United States citizenship alone does not make such individuals immune from being targeted. Rather, it means that the government must take special care and take into account all relevant constitutional considerations, the laws of war, and other law with respect to U.S. citizens––even those who are leading efforts to kill their fellow, innocent
10

detonate explosive devices on two U.S.-bound cargo planes.”).14 Attorney General Holder
assured Senator Leahy that the decision to target Anwar Al-Aulaqi with lethal force was
“subjected to an exceptionally rigorous interagency legal review” and an “extensive policy
review.” AG Letter at 3-4. Attorney General Holder also stated that the Executive Branch
informed Congress of the planned drone assault in advance: “Indeed, the Administration
informed the relevant congressional oversight committees that it had approved the use of lethal
force against al-Aulaqi in February 2010––well over a year before the operation in question––
and the legal justification was subsequently explained in detail to those committees, well before action was taken against [al]-Aulaqi.” Id. at 4.15
Americans. Such considerations allow for the use of lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa’ida or its associated forces, and who is actively engaged in planning to kill Americans, in the following circumstances: (1) the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; (2) capture is not feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. AG Letter at 3 (emphasis in original). 14 The President did not elaborate further regarding the 2010 plot to attack two U.S.-bound cargo planes. 15 See also Diane Feinstein, Feinstein Statement on Intelligence Committee Oversight of Targeted Killings, Feb. 13, 2013, http://www.feinstein.senate.gov/public/index.cfm/pressreleases?ID=5b8dbe0c-07b6-4714-b663-b01c7c9b99b8 (last visited Apr. 4, 2014) (Senate Intelligence Committee has held thirty-five oversight meetings for the purpose of reviewing strike records and questioning “every aspect of the [drone] program”; the Committee receives “notifications with key details of each strike shortly after it occurs . . . .”).
11

C. The Immediate Lawsuit 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.16 Nasser Al-Aulaqi is a Yemeni citizen who moved to the United States in 1966 to study as a Fulbright scholar at New Mexico State University. Compl. ¶ 21. He and his wife, who is an American citizen, remained in the United States until their return to Yemen in 1978. While living in Yemen, Nasser Al-Aulaqi has served as Yemen’s Minister of Agriculture and Fisheries, president of Sana’a University, and president of Ibb University.
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.17
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,
16 On March 21, 2012, Nasser Al-Aulaqi filed in the Probate Division of D.C. Superior Court a notice of appointment as personal representative of the Estates of Anwar and Abdulrahman AlAulaqi. On May 17, 2012, Sarah Khan filed in the same court notice of appointment as personal representative of the Estate of Samir Khan. See Notice of Probate Appointments [Dkt. 30]. 17 Abdulrahman Al-Aulaqi “moved with his family to Yemen” in 2002, see Compl. ¶ 36, while Anwar Al-Aulaqi “left the United States in 2003,” see id. ¶ 22.
12

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;18 and former CIA Director General David H. Petraeus.19 Defendants allegedly personally authorized and directed the strikes that killed Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi. Id. ¶¶ 12-15, 35. Plaintiffs allege that the targeted killings took place in Yemen, which was “outside the context of armed conflict” and that “[t]hese killings rel[ied] on vague legal standards, a closed executive process, and evidence never presented to the courts.” Id. ¶ 1.
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
18 Lt. Gen. Votel succeeded Adm. McRaven as JSOC Commander. 19 Gen. Petraeus served as CIA Director from September 6, 2011 until November 9, 2012.
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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 (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.
II. LEGAL STANDARDS A. Motion to Dismiss Under Rule 12(b)(1)
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 (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
14

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 to the truthfulness of the allegations in a complaint, a court may examine testimony and affidavits). In these circumstances, consideration of documents outside the pleadings does not convert the motion to dismiss into one for summary judgment. Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 21 (D.D.C. 2003).
B. Motion to Dismiss Under Rule 12(b)(6) 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 (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. A court must treat the complaint’s factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555.
15

But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679 (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 F. App’x 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).
C. Judicial Notice 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. Sebelius, 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
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(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 (D.C. Cir. 1996) (common law right of access to “public records” includes access to government documents “created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived”). In addition, a court may take judicial notice of a formal position of the U.S. Government. See Simpson v. Socialist People’s Libyan Arab Jamahiriya, 362 F. Supp. 2d 168, 178 n.5 (D.D.C. 2005) (taking judicial notice of State Department’s annual publication, Patterns of Global Terrorism, as a reflection of the formal and official position of U.S. Government), aff’d, 470 F.3d 356, 362 (D.C. Cir. 2006).
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
17

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.
III. ANALYSIS 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. A. Political Question Doctrine 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 the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean
18

Soc’y, 478 U.S. 221, 230 (1986). The doctrine is “primarily a function of the separation of powers.” Baker v. Carr, 369 U.S. 186, 210 (1962).
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 (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 (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 (1984); Dames & Moore v. Regan, 453 U.S. 654 (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
19

to trample the most fundamental liberty and property rights of this country’s citizenry.” Id. (quoting Ramirez de Arellano, 745 F.2d at 1515).20
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 (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 (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 overreaching government, and this Court cannot refuse to provide an independent legal analysis.
This conclusion is not changed because Defendants argue that El-Shifa Pharmaceutical Industries v. United States makes this case non-justiciable. The El-Shifa plaintiffs were owners of a Sudanese pharmaceutical plant who sued the United States for destroying their plant with a missile strike. U.S. officials asserted that the plant was producing chemical weapons for Osama bin Laden. 607 F.3d at 838-39. The plaintiffs sought compensation for the plant’s destruction and the retraction of allegedly defamatory statements. Id. at 839. The Circuit dismissed the case based on the political question doctrine. Id. at 840-44. El-Shifa is distinguishable from this case in key respects––the El-Shifa plaintiffs were not U.S. citizens and there was no allegation that they had a substantial connection to the United States
20 U.S. Citizens v. Reagan found the plaintiffs’ Fifth Amendment claims justiciable, but ultimately declined to hear their claims because they did not allege that the United States participated in or encouraged injuries to Americans in Nicaragua. 859 F.2d at 934-35.
20

that might have given rise to cognizable Fifth Amendment rights. See United States v. Verdugo-
Urquidez, 494 U.S. 259, 265-66 (1990) (a non-U.S. resident foreign national is entitled to certain
constitutional protections if the foreign national had a “substantial connection” to the United
States); 32 Cnty. Sovereignty Comm. v. Dep’t of State, 292 F.3d 797, 799 (D.C. Cir. 2002)
(foreign plaintiff was not entitled to due process regarding State Department’s designation of it
as a foreign terrorist organization because plaintiff did not have a controlling interest in property
in the United States and did not show any other substantial connection). Foreign aliens suing for
deprivation of a foreign property interest are not comparable to U.S. citizens suing for
deprivation of their lives. Because Plaintiffs here pointedly allege that Defendants, U.S.
officials, intentionally targeted and killed U.S. citizens abroad without due process, the Court finds that this case is justiciable and that it has subject matter jurisdiction.21
B. Constitutional Claims Pursuant to Bivens
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
(1998). Plaintiffs contend that Defendants violated the Fourth and Fifth Amendments. The
Fourth Amendment reads:
21 The Court recognizes that its holding regarding the political question doctrine is inconsistent with Judge Bates’s decision in Al-Aulaqi v. Obama. That earlier case alleged that the United States’ intention to kill Anwar Al-Aulaqi violated the Fifth Amendment. In contrast, the instant Complaint raises the issue more directly and acutely, asserting a claim for damages for the actual taking of Anwar Al-Aulaqi’s life without regard to Fifth Amendment protections. Al-Aulaqi v. Obama considered the issues of separation of powers, competence of the Judicial Branch to review military decisions, whether there were judicially discoverable and manageable standards for reviewing the nature of the security threat, and whether the use of lethal force was justified. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 44-53. The question here is whether one or more of the same issues prevents Plaintiffs from seeking a Bivens remedy against individual U.S. officials.
21

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. The Fifth Amendment provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . . nor be deprived of life, liberty, or property, without due process of law . . . .
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 (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. Constituion.
1. Fourth Amendment
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 (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 22

analyzed his claim under the Fourth Amendment and not under the Fourteenth Amendment as alleged.22 Id. at 395. Thus, “Graham . . . requires that if a constitutional claim is covered by a specific constitutional provision . . . the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997).
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 (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 (1991); accord United States v. Jordan, 951 F.2d 1278, 1281 (D.C. Cir. 1991).
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-
22 The Graham plaintiff asserted his constitutional rights by asserting a violation of 42 U.S.C. § 1983, which applies to State, not Federal, actors. Courts interpret § 1983 and Bivens claims in a parallel manner. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 82 (2001). The application of different standards for claims against State and Federal actors would be “incongruous and confusing.” Id. (quoting Butz v. Economou, 438 U.S. 468, 499 (1978)).
23

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.
2. Procedural and Substantive Due Process 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 (1986). It encompasses both substantive and procedural components. Zinermon v. Burch, 494 U.S. 113, 125 (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 (2005), and that government officials knowingly, and not merely negligently, deprived him of that interest, see Daniels, 474 U.S. at 335-36, 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 (1976).23
23 “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). To determine what procedural process is due, courts balance the following factors: (1) the private interest that will be affected by the restraint; (2) the risk of an erroneous deprivation of such interest through the procedures used; (3) the probable value, if any, of additional or substitute procedural safeguards; and (4) the Government’s interest, including the burden of a hearing. Mathews, 424 U.S. at 335. “[T]he necessity of quick action by the State or the impracticality of providing any predeprivation process may mean that a postdeprivation remedy is constitutionally adequate.” Zinermon, 494 U.S. at 128 (internal quotation marks and citation omitted).
24

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 (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; 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 personal or property rights,” gives rise to a substantive due process claim).
Conduct that “shocks in one environment may not be so patently egregious in another,” and the
“concern with preserving the constitutional proportions of substantive due process demands an
exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” 24 Cnty. of Sacramento, 523 U.S. at 850–51. No court has ever examined the precise
nature of the substantive due process rights of an enemy, who also is a U.S. citizen, killed by a
drone. Cf. O.K. v. Bush, 377 F. Supp. 2d 102, 112 n.10 (D.D.C. 2005) (“No federal court has
ever examined the nature of the substantive due process rights of a prisoner in a military
interrogation or prisoner of war context.”).
24 Context is important. If a soldier in foreign uniform is killed by the U.S. military on a battlefield, his death does not raise substantive due process concerns, even if the soldier was a U.S. citizen, since such a killing would not constitute government conduct that was so egregious or outrageous that it may be said to “shock the conscience.” See Cnty. of Sacramento, 523 U.S. at 847 n.8. Use of military force against those individuals––even U.S. citizens––who fight against U.S. troops is permissible under the Constitution. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (detention of U.S. citizen who was classified as “enemy combatant” did not violate due process); id. at 587, 597 (Thomas, J., dissenting); Ex parte Quirin, 317 U.S. 1, 37-38 (1942) (“Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.”).
25

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; accord Davidson v. Cannon, 474 U.S. 344, 347-48 (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. Accordingly, the Fifth Amendment claims asserted on behalf of Mr. Khan and Abdulrahman AlAulaqi 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 AlAulaqi was executed without charge, indictment, or prosecution. 25 See Compl. ¶ 26. They also
25 Had he been captured alive, Anwar Al-Aulaqi might have been charged with treason. The U.S. Constitution defines treason as follows:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in Open Court. U.S. Const. art. III, § 3.
26

allege a substantive due process claim by asserting that Defendants killed Anwar Al-Aulaqi with deliberate indifference to his constitutional right to life, both outside of armed conflict and at a time when he did not present a concrete, specific, and imminent threat to the United States. See id. ¶¶ 4, 24, 33-34. The Court does not opine that Anwar Al-Aulaqi was entitled to notice and a predeprivation hearing, or that his Estate was entitled to a postdeprivation hearing, or that the drone killing of Anwar Al-Aulaqi “shocks the conscience.” The Court merely holds that the Complaint states a “plausible” procedural and substantive due process claim on behalf of Anwar Al-Aulaqi. See Twombly, 550 U.S. at 570.
3. Special Factors Preclude a Bivens Claim 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 AlAulaqi’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 (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.26 See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001) (Bivens “is concerned solely with deterring individual officers’ unconstitutional acts.”) However, in the more than forty years since Bivens was decided, the Supreme Court has extended its analysis in only two contexts. See Carlson v. Green, 446 U.S. 14 (1980) (permitting federal prisoner to seek Bivens remedy for violation of Eighth Amendment); Davis v. Passman,
26 A Bivens suit is the federal counterpart of a claim brought under 42 U.S.C. § 1983 against a state or local official for violation of constitutional rights. Ali v. Rumsfeld, 649 F.3d 762, 768 n.3 (D.C. Cir. 2011).
27

442 U.S. 228 (1979) (permitting former Congressional staffer to seek Bivens remedy for gender discrimination in violation of Fifth Amendment). Neither of these contexts applies here. Since 1980, the Supreme Court has “consistently refused to extend Bivens liability to any new context or new category of defendants.” Malesko, 534 U.S. at 68.
Courts refuse to imply a remedy under Bivens when Congress has provided an “alternative remedy” to protect the interest in question, Wilke v. Robbins, 551 U.S. 537, 550 (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). 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 deprivations of liberty without due process arising from military detention and alleged abuse of U.S. citizens. Specifically, the D.C. Circuit, as well as the Fourth and Seventh Circuits, have decided that special factors––including separation of powers, national security, and the risk of interfering with military decisions–– preclude the extension of a Bivens remedy to such cases. See Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012); Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir.), cert. denied, 132 S. Ct. 2751 (2012); Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc).27
27 Similarly, courts have held that special factors preclude the use of Bivens to remedy deprivations of liberty without due process arising from military detention and alleged abuse of non-U.S. citizens. See Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011) (Afghani and Iraqi
28

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. 668, 682 (1987) (finding no Bivens remedy for damages arising out of military service)).
detainees captured and held by the U.S. military in their home countries were precluded from bringing Bivens claim, as special factors applied); Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2011) (Iranians could not proceed under Bivens on claims of illegal detention during deportation proceedings due to special factors such as implications for diplomacy and foreign policy); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc) (due to special factors, dual citizen of Canada and Syria was not permitted to proceed on a Bivens claim alleging improper and abusive custody in the context of extraordinary rendition).
29

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 contemplated that the Legislative Branch has plenary control over rights, duties, and responsibilities in the framework of the military establishment, including regulations, procedures, and remedies.” Chappell v. Wallace, 462 U.S. 296, 301 (1983). Authority over national defense and the military is shared with the Executive; Article II appoints the President Commander in Chief of the Armed Forces. Id. art. II, § 2. As a result, the Seventh Circuit has held that “civilian courts should not interfere with the military chain of command.” Vance, 701 F.3d at 199. Courts regularly accord great deference to Congress with respect to its authority over national defense and military affairs, see Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981), and to military authorities with respect to decisions concerning the relative importance of a particular military interest, see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Also, courts “traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988).
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
30

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.28 Id. Mr. Padilla sued various federal officials in their personal capacities, seeking a Bivens damages remedy for the violation of his Fifth and Eighth Amendment rights. The Fourth
28 Eventually, Mr. Padilla was indicted on criminal terrorism charges in the Southern District of Florida. He was transferred to civilian custody, tried, and convicted. See United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011) (affirming Padilla’s conviction on terrorism charges and reversing his sentence of 208 months incarceration because it was too low).
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Circuit refused to imply a Bivens remedy, emphasizing the wisdom behind the Constitution’s
delegation of authority and power over the military to the political Branches:
The reasons for this constitutional structure are apparent. Questions of national security, particularly in times of conflict, do not admit of easy answers, especially not as products of the necessarily limited analysis undertaken in a single case. It is therefore unsurprising that “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.”
Id. at 549 (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 531 (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). “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:
Any defense to Padilla’s claims––which effectively challenge the whole of the government’s detainee policy––could require current and former officials, both military and civilian, to testify as to the rationale for that policy, the global nature of the terrorist threat it was designed to combat, the specific intelligence that led to the application of that policy to Padilla, where and from whom that
32

intelligence was obtained, what specific military orders were given in the chain of command, and how those orders were carried out. 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 Stat. 224 (reprinted at 50 U.S.C. § 1541 note), authorizing the Executive to use necessary and appropriate military force against al-Qa’ida, the Taliban in Afghanistan, and affiliated forces. The President detained Mr. Padilla pursuant to the AUMF. Courts “accord the President the deference that is his when he acts pursuant to a broad delegation of authority from Congress.” Lebron, 670 F.3d at 549 (citation omitted). 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.
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§§ 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 AlAulaqi 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.
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It is the Executive’s position that AQAP is affiliated with al-Qa’ida.29 Further, the AUMF does
not contain geographical limits. See Bensayah v. Obama, 610 F.3d 718, 720-21 (D.C. Cir. 2010)
(AUMF authorized detention of individual arrested in Bosnia and turned over to U.S. custody so
long as individual was part of al-Qa’ida); Al-Adahi v. Obama, 613 F.3d 1102, 1103, 1111 (D.C.
Cir. 2010) (AUMF authorized detention of person arrested in Pakistan and transferred to U.S. custody).30 Thus, the fact that Anwar Al-Aulaqi was targeted in Yemen does not undermine the
AUMF as the source of authority for the use of force against him.
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.
29 See Director Leiter Statement at 2, 4-5. 30 The Executive Branch takes the position that AUMF provides legal authority for targeted strikes against enemy forces beyond the battlefields of Afghanistan. See Robert Chesney, Text of Deputy National Security Advisor John Brennan’s Speech at the Wilson Center on Drone Strikes, Lawfare (Apr. 30, 2012) (found at http://www.lawfareblog.com/2012/04/brennanspeech/ (last visited Apr. 4, 2014). The Complaint quotes Mr. Brennan’s speech, without citing to it. See Compl. ¶ 18 (“In April 2012, Deputy . . . Brennan acknowledged publically that the United States carries out targeted killings of suspected terrorists ‘beyond hot battlefields like Afghanistan,’ often using ‘remotely piloted aircraft’ known as ‘drones.’”). At the time the AUMF was enacted, the Executive Branch commonly asserted that the United States was involved in a “global war on terror.”
35

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 (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
36

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 permitted where suit would affect diplomacy and foreign policy). These special
factors counsel hesitation in extending a Bivens remedy here.
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:
The Supreme Court has never suggested that citizenship matters to a claim under Bivens. It would be offensive to our allies, and it should be offensive to our own principles of equal treatment, to declare that this nation systematically favors U.S. citizens over Canadians, British, Iraqis, and our other allies when redressing injuries caused by our military and intelligence operations. Treaties may pose a further obstacle to favoring U.S. citizens in the design of common-law remedies, but we need not decide, because the choice of remedies for military misconduct31 belongs to Congress and the President rather than the judicial branch.
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
31 Congress has provided various remedies to persons harmed by the military, but no statute provides for damages against military personnel or their civilian superiors. See, e.g., Vance, 701 F.3d at 201 (discussing application of, inter alia, the Military Claims Act, 10 U.S.C. § 2733 and the Foreign Claims Act, 10 U.S.C. § 2734).
37

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.
C. Order for Ex Parte Submission of Classified Information 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 Court, see Minute Order (Dec. 26, 2013),32 but the United States refused, seeking a ruling on the threshold legal defenses raised in
32 The Minute Order required the United States to lodge classified declarations, in camera and ex parte:
in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security [ ], including information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the specific threat posed by [ ] Anwar Al-
38

Defendants’ motion to dismiss “before any court-ordered development of the factual record.” See Mot. for Recons. & to Stay Order [Dkt. 34] at ECF 6.33 The United States asserted that the Defendants’ motion to dismiss accepts the well-pled facts as true, without reference to classified information, see id. at 9, and that the motion “can and should be resolved without reference to the classified information,” see id. at ECF 13. Plaintiffs agreed. Pls. Resp. to Mot. for Recons. [Dkt. 35]. The United States argued that the factual information that the Court requested was not relevant to the Defendants’ special factors argument because special factors precluded Plaintiffs’ cause of action, given the context in which the claims, “as pled,” arose––that is, “the alleged firing of missiles by military and intelligence officers at enemies in a foreign country in the course of an armed conflict.” Mot. for Recons. & to Stay Order at ECF 10.
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,
Aulaqi, and other matters that Plaintiff[s have] put at issue, including any criteria governing the use of lethal force, updated to address the facts of this record. Minute Order (Dec. 26, 2013). 33 The Court cites the page number assigned by the Electronic Case Filing system.
39

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.
D. Bill of Attainder Plaintiffs also allege that Defendants violated the Constitution’s Bill of Attainder
Clause by placing Anwar Al-Aulaqi on the JSOC “kill list.”34 The Constitution provides: “No Bill of Attainder or ex post facto Law shall be passed.” U.S. Const. art. I, § 9; see also id., § 10 (“No State shall . . . pass any Bill of Attainder [or] ex post facto Law . . . .”). That is, the Constitution forbids legislative acts that inflict punishment without a judicial trial. BellSouth Corp. v. FCC, 144 F.3d 58, 62 (D.C. Cir. 1998). A Bill of Attainder requires legislative action intended to punish an individual. Id.; Paradissiotis v. Rubin, 171 F.3d 983, 988 (5th Cir. 1999). No formal action of either the House or Senate was taken to approve the strike against Anwar Al-Aulaqi. Because Plaintiffs can point to no legislative action, the Bill of Attainder Clause does not apply.
34 The Bill of Attainder claim is made only on behalf of Anwar Al-Aulaqi. 40

IV. CONCLUSION 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.

Date: April 4, 2014

/s/ ROSEMARY M. COLLYER United States District Judge

41

 
 10/24/2017

District of Columbia live database
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:12-cv-01192-RMC

CLOSED,TYPE-L

AL-AULAQI et al v. PANETTA et al Assigned to: Judge Rosemary M. Collyer Cause: 28:1391 Personal Injury Plaintiff NASSER AL-AULAQI as personal representative of the estates of Anwar Al-Aulaqi and Abdulrahman AlAulaqi
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?302880693099013-L_1_0-1

Date Filed: 07/18/2012 Date Terminated: 04/04/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 4301 Connecticut Avenue, NW Suite 434 Washington, DC 20008 (202) 457-0800 x1004 Fax: (202) 457-0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett Max Kaufman AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549-2603 Fax: (212) 549-2654 Email: bkaufman@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hina Shamsi AMERICAN CIVIL LIBERTIES UNION FOUNDATION National Security Project 125 Broad Street 18th ﬂoor New York, NY 10004 (212) 284-7321 Fax: (212) 549-2654 Email: hshamsi@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jameel Jaffer
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KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY 535 West 116th Street 314 Low Library New York, NY 10027 (212) 854-9600 Fax: (212) 854-7997 Email: jameel.jaffer@knightcolumbia.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria C. LaHood CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway 7th Floor New York, NY 10012-2317 (212) 614-6430 Fax: (212) 614-6499 Email: mlahood@ccrjustice.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
SARAH KHAN as personal representative of the estate of Samir Khan

Pardiss Kebriaei CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway 7th Floor New York, NY 10012 (212) 614-6452 Fax: (212) 614-6499 Email: pkebriaei@ccrjustice.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brett Max Kaufman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Hina Shamsi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria C. LaHood (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Pardiss Kebriaei (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Interested Party UNITED STATES OF AMERICA

represented by Paul Elias Werner U.S. DEPARTMENT OF JUSTICE Civil Division Ben Franklin Station P.O. Box 7146 Washington, DC 20044 (202) 616-4152 Fax: (202) 616-4314 Email: paul.werner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
LEON PANETTA Secretary of Defense

represented by Paul Elias Werner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
WILLIAM H. MCRAVEN Commander, Special Operations Command

represented by Paul Elias Werner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JOSEPH VOTEL Commander, Joint Special Operations Command

represented by Paul Elias Werner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Paul Elias Werner

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DAVID PETRAEUS Director, Central Intelligence Agency : all in their individual capacities

District of Columbia live dataPbaaseul Elias Werner represented by (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

07/18/2012

1 MOTION for Leave to File COMPLAINT WITHOUT LISTING THEIR HOME ADDRESSES by NASSER AL-AULAQI, SARAH KHAN (rdj) (Entered: 07/23/2012)

07/18/2012

2 ORDER granting 1 Motion for Leave to File COMPLAINT WITHOUT LISTING THEIR HOME ADDRESSES. Signed by Judge John D. Bates on July 18, 2012. (rdj) (Entered: 07/23/2012)

07/18/2012

3 COMPLAINT against WILLIAM H. MCRAVEN, LEON EDWARD PANETTA, DAVID PETRAEUS, JOSEPH VOTEL ( Filing fee $ 350, receipt number 4616050207) ﬁled by NASSER AL-AULAQI, SARAH KHAN. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 07/23/2012)

07/18/2012

SUMMONS (6) Issued as to WILLIAM H. MCRAVEN, LEON EDWARD PANETTA, DAVID PETRAEUS, JOSEPH VOTEL, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 07/23/2012)

07/23/2012

4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/23/2012. Answer due for ALL FEDERAL DEFENDANTS by 9/21/2012. (Attachments: # 1 Declaration of service of process on U.S. Attorney)(Spitzer, Arthur) (Entered: 07/23/2012)

07/27/2012

5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Hina Shamsi, :FirmAmerican Civil Liberties Union Foundation, :Address- 125 Broad Street, 18th ﬂoor, New York, NY 10004. Phone No. - 212-284-7321. Fax No. - 212-549-2654 by NASSER ALAULAQI, SARAH KHAN (Attachments: # 1 Declaration of Hina Shamsi, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 07/27/2012)

07/27/2012

6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jameel Jaffer, :FirmAmerican Civil Liberties Union Foundation, :Address- 125 Broad Street, 18th ﬂoor, New York, NY 10004. Phone No. - 212-519-7814. Fax No. - 212-549-2654 by NASSER ALAULAQI, SARAH KHAN (Attachments: # 1 Declaration of Jameel Jaffer, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 07/27/2012)

07/27/2012

7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Maria LaHood, :FirmCenter for Constitutional Rights, :Address- 666 Broadway, 7th Floor, New York, NY 10012. Phone No. - (212) 614-6430. Fax No. - (212) 614-6499 by NASSER AL-AULAQI, SARAH KHAN (Attachments: # 1 Declaration of Maria LaHood, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 07/27/2012)

07/27/2012

8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Pardiss Kebriaei, :FirmCenter for Constitutional Rights, :Address- 666 Broadway, 7th Floor, New York, NY 10012. Phone No. - (212) 614-6452. Fax No. - (212) 614-6499 by NASSER AL-AULAQI, SARAH KHAN (Attachments: # 1 Declaration of Pardiss Kebriaei, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 07/27/2012)

07/30/2012

MINUTE ORDER granting 7 Motion for Leave for Maria LaHood to Appear Pro Hac Vice; granting 8 Motion for Leave for Pardiss Kebriaei to Appear Pro Hac Vice. Signed by Judge Rosemary M. Collyer on 7/30/2012. (lcrmc2) (Entered: 07/30/2012)

08/15/2012

MINUTE ORDER granting 5 Motion for Leave to Appear Pro Hac Vice; granting 6 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Rosemary M. Collyer on

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8/15/2012. (lcrmc2) (Entered: 08/15/2012)

09/19/2012

9 NOTICE of Appearance by Paul Elias Werner on behalf of All Defendants (Werner, Paul) (Entered: 09/19/2012)

09/19/2012

10 NOTICE of Statement of Request for Correction to Docketed Response Date by WILLIAM H. MCRAVEN, LEON C. PANETTA, DAVID PETRAEUS, JOSEPH VOTEL (Werner, Paul) (Entered: 09/19/2012)

09/24/2012

MINUTE ORDER re 10 Notice (Other) ﬁled by LEON C. PANETTA, DAVID PETRAEUS, WILLIAM H. MCRAVEN, JOSEPH VOTEL. Pursuant to Fed. R. Civ P. 12(a)(3), the Defendants' responses are due 60 days after they are served with a summons and copy of the Complaint. Signed by Judge Rosemary M. Collyer on 9/24/2012. (lcrmc2) (Entered: 09/24/2012)

10/22/2012

11 ENTERED IN ERROR.....NOTICE of Filing of Proof of Service of Process upon David Petraeus by NASSER AL-AULAQI, SARAH KHAN (Attachments: # 1 Afﬁdavit Service of Process upon David Petraeus, # 2 Exhibit Return Receipt)(Kebriaei, Pardiss) Modiﬁed on 10/23/2012 (rdj). (Entered: 10/22/2012)

10/22/2012

12 ENTERED IN ERROR.....NOTICE of Filing of Proof of Service of Process upon Leon Panetta, William McRaven and Joseph Votel by NASSER AL-AULAQI, SARAH KHAN (Attachments: # 1 Afﬁdavit Service of Process upon Leon Panetta, William McRaven and Joseph Votel, # 2 Exhibit Return Receipt)(Kebriaei, Pardiss) Modiﬁed on 10/23/2012 (rdj). (Entered: 10/22/2012)

10/22/2012

13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/01/2012. (Spitzer, Arthur) (Entered: 10/22/2012)

10/22/2012 14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DAVID PETRAEUS served on 10/15/2012 (rdj) (Entered: 10/23/2012)

10/22/2012

15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. WILLIAM H. MCRAVEN served on 10/12/2012; LEON C. PANETTA served on 10/12/2012; JOSEPH VOTEL served on 10/12/2012 (rdj) (Entered: 10/23/2012)

10/23/2012

NOTICE OF CORRECTED DOCKET ENTRY: re 12 Notice (Other), 11 Notice (Other), was entered in error and reﬁled as docket entry 14 & 15 . Counsel is instructed to use the Summons Returned Executed as to Federal Defendant Event under Service of Process in the future. (rdj) (Entered: 10/23/2012)

10/23/2012

16 STIPULATION Regarding Service of Process on Defendants and Agreed Date for Responsive Pleading by NASSER AL-AULAQI, SARAH KHAN. (Kebriaei, Pardiss) (Entered: 10/23/2012)

11/20/2012

17 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Brett M. Kaufman, :FirmAmerican Civil Liberties Union Foundation, :Address- 125 Broad Street, New York, NY 10004. Phone No. - 212.549.2603. Fax No. - 212.549.2654 by NASSER AL-AULAQI, SARAH KHAN (Attachments: # 1 Declaration of Brett Kaufman, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 11/20/2012)

11/21/2012

MINUTE ORDER granting 17 Motion for Leave to Appear Pro Hac Vice by Brett M. Kaufman. Signed by Judge Rosemary M. Collyer on 11/21/2012.(lcrmc2) (Entered: 11/21/2012)

12/14/2012

18 MOTION to Dismiss by WILLIAM H. MCRAVEN, LEON PANETTA, DAVID PETRAEUS, JOSEPH VOTEL (Attachments: # 1 Text of Proposed Order)(Werner, Paul) (Entered: 12/14/2012)

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19 NOTICE Statement of Interest by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit (1) Clapper Declaration, # 2 Exhibit (2) Gates Declaration, # 3 Exhibit (3) Panetta Declaration, # 4 Exhibit (4) AG Memo)(Werner, Paul) (Entered: 12/14/2012)

12/20/2012

20 Joint MOTION for Extension of Time to File Response/Reply re 18 MOTION to Dismiss, by NASSER AL-AULAQI, SARAH KHAN (Kebriaei, Pardiss) Modiﬁed on 12/20/2012 to edit event and create relationship(dr). (Entered: 12/20/2012)

12/20/2012

MINUTE ORDER granting 20 Motion for Extension of Time to File Response/Reply to 18 Motion to Dismiss. Plaintiffs' Opposition to Defendants' Motion to Dismiss the Complaint shall be ﬁled no later than February 5, 2013. Defendants' Reply shall be ﬁled no later than March 7, 2013. Signed by Judge Rosemary M. Collyer on 12/20/2012.(lcrmc2) (Entered: 12/20/2012)

02/05/2013

21 Memorandum in opposition to re 18 MOTION to Dismiss ﬁled by NASSER AL-AULAQI, SARAH KHAN. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Pardiss Kebriaei)(Shamsi, Hina) (Entered: 02/05/2013)

03/06/2013

22 MOTION for Extension of Time to File Response/Reply as to 18 MOTION to Dismiss by WILLIAM H. MCRAVEN, LEON PANETTA, DAVID PETRAEUS, JOSEPH VOTEL (Attachments: # 1 Text of Proposed Order)(Werner, Paul) (Entered: 03/06/2013)

03/06/2013

MINUTE ORDER granting 22 MOTION for Extension of Time to File Reply as to 18 MOTION to Dismiss ﬁled by LEON PANETTA, DAVID PETRAEUS, WILLIAM H. MCRAVEN, JOSEPH VOTEL. Defendants shall ﬁle their reply brief no later than March 11, 2013. Signed by Judge Rosemary M. Collyer on 3/6/2013. (lcrmc2) (Entered: 03/06/2013)

03/06/2013

Set/Reset Deadlines/Hearings: Reply to 18 due by 3/11/2013. (cdw) (Entered: 03/07/2013)

03/07/2013

23 REPLY to opposition to motion re 18 MOTION to Dismiss ﬁled by WILLIAM H. MCRAVEN, LEON PANETTA, DAVID PETRAEUS, JOSEPH VOTEL. (Werner, Paul) (Entered: 03/07/2013)

03/22/2013 24 MOTION for Hearing re 18 MOTION to Dismiss by NASSER AL-AULAQI, SARAH KHAN (Shamsi, Hina) (Entered: 03/22/2013)

03/28/2013 25 NOTICE of Hearing: Oral Argument set for 7/19/2013 at 10:00 AM in Courtroom 8 before Judge Rosemary M. Collyer. (cdw) (Entered: 03/28/2013)

03/28/2013

MINUTE ORDER granting 24 Motion for Hearing. An oral argument on 18 the Motion to Dismiss will be held on July 19, 2013, at 10:00 a.m. Signed by Judge Rosemary M. Collyer on 3/28/2013. (lcrmc2) (Entered: 03/28/2013)

05/22/2013

MINUTE ORDER. A hearing on 18 Defendants' Motion to Dismiss is scheduled for July 19, 2013. On May 22, 2013, the New York Times published an article touching on the subject matter of the Complaint. See Charlie Savage, U.S. Admits for First Time Drones Killed 4 Americans, N.Y. Times, May 22, 2013, available at http://www.nytimes.com/2013/05/23/us/us-acknowledges-killing-4-americans-in-dronestrikes.html?_r=1&. No later than June 5, 2013, Defendants shall ﬁle a memorandum of no longer than ﬁfteen pages stating how, if at all, the Attorney General's acknowledgment affects the legal issues in this case. Signed by Judge Rosemary M. Collyer on 5/22/2013. (lcrmc2) (Entered: 05/22/2013)

06/05/2013

26 RESPONSE TO ORDER OF THE COURT re MINUTE Order ﬁled by WILLIAM H. MCRAVEN, LEON PANETTA, DAVID PETRAEUS, JOSEPH VOTEL. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(rdj) (Entered: 06/06/2013)

06/11/2013 27 MOTION for Leave to File Reply to Defendants' Response to the Court's May 22, 2013

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06/11/2013
06/11/2013 06/21/2013 07/17/2013 07/19/2013 09/17/2013

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Order by NASSER AL-AULAQI, SARAH KHAN (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Motion for Leave to File Reply to Defendants' Response to the Court's May 22, 2013 Order)(Shamsi, Hina) (Entered: 06/11/2013)
MINUTE ORDER granting 27 Motion for Leave to File. Plaintiffs shall ﬁle a reply to 26 the Defendants' Response. Because the text of the proposed reply was set forth in 27 the Motion for Leave to File, Plaintiffs are directed to ﬁle a separate document containing their reply. Signed by Judge Rosemary M. Collyer on 6/11/2013. (lcrmc2) (Entered: 06/11/2013)
28 REPLY re 26 Response to Order of the Court ﬁled by NASSER AL-AULAQI, SARAH KHAN. (Shamsi, Hina) (Entered: 06/11/2013)
29 NOTICE of Appearance of Brian Hauck on Behalf of the Defendants by WILLIAM H. MCRAVEN, LEON PANETTA, DAVID PETRAEUS, JOSEPH VOTEL (Werner, Paul) (Entered: 06/21/2013)
30 NOTICE of Probate Appointments by NASSER AL-AULAQI, SARAH KHAN (rdj) (Entered: 07/18/2013)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Motion Hearing held on 7/19/2013 re 18 Motion to Dismiss. Motion heard and taken under advisement. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 07/19/2013)
31 TRANSCRIPT OF PROCEEDINGS before Judge Rosemary M. Collyer held on 07/19/13; Page Numbers: 1-70. Date of Issuance:09/17/13. Court Reporter/Transcriber Crystal M. Pilgrim, Telephone number 202.354.3127, Court Reporter Email Address : crystalpilgrim@aol.com.

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at ww.dcd.uscourts.gov.

Redaction Request due 10/8/2013. Redacted Transcript Deadline set for 10/18/2013. Release of Transcript Restriction set for 12/16/2013.(Pilgrim, Crystal) (Entered: 09/17/2013)

12/05/2013

32 NOTICE OF SUPPLEMENTAL AUTHORITY by WILLIAM H. MCRAVEN, LEON PANETTA, DAVID PETRAEUS, JOSEPH VOTEL (Attachments: # 1 Court Opinion) (Werner, Paul) (Entered: 12/05/2013)

12/10/2013 33 RESPONSE re 32 NOTICE OF SUPPLEMENTAL AUTHORITY ﬁled by NASSER ALAULAQI, SARAH KHAN. (Kebriaei, Pardiss) (Entered: 12/10/2013)

12/26/2013

VACATED PURSUANT TO THE COURT'S ORDER OF 4/4/2014........MINUTE ORDER requiring the United States, an interested party 19 , to lodge no later than January 24, 2014, classiﬁed declaration(s) with court security ofﬁcers, in camera and ex parte, in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security..., include[ing] information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the speciﬁc threat posed by... Anwar-al Aulaqi, and other matters that plaintiff[s have] put at

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12/30/2013 01/10/2014 01/10/2014 01/17/2014 01/21/2014 04/04/2014 04/04/2014 06/03/2014

District of Columbia live database
issue, including any criteria governing the use of lethal force, updated to address the facts of this record. Al-Aulaqi v. Obama, Civ. No. 10-1469(JDB)(Dkt. 29, Defendants Reply to Plaintiffs Opposition to Defendants Motion to Dismiss at 24). Signed by Judge Rosemary M. Collyer on 12/26/2013. (KD) Modiﬁed on 4/7/2014 (zcdw). (Entered: 12/26/2013)
Set/Reset Deadlines: United States to lodge classiﬁed declaration(s) with court security ofﬁcers in camera and ex partte by 1/24/2014. (zmm, ) (Entered: 12/30/2013)
34 MOTION for Reconsideration and to Stay the Court's December 26, 2013, Order by UNITED STATES OF AMERICA (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(Werner, Paul). Added MOTION to Stay on 1/10/2014 (jf, ). (Entered: 01/10/2014)
NOTICE OF ERROR re 34 Motion for Reconsideration; emailed to paul.werner@usdoj.gov, cc'd 12 associated attorneys -- The PDF ﬁle you docketed contained errors: 1. Two-part docket entry, 2. DO NOT REFILE--Counsel is reminded to select all parts of their motion (jf, ) (Entered: 01/10/2014)
35 RESPONSE re 34 MOTION for Reconsideration and to Stay the Court's December 26, 2013, Order MOTION to Stay ﬁled by NASSER AL-AULAQI, SARAH KHAN. (Shamsi, Hina) (Entered: 01/17/2014)
MINUTE ORDER. The Court takes the 34 Motion for Reconsideration and 35 Response under advisement. The Court hereby suspends the government's obligation to respond to the 12/26/2013 Minute Order. Signed by Judge Rosemary M. Collyer on 1/21/2014. (lcrmc1) (Entered: 01/21/2014)
36 MEMORANDUM AND OPINION regarding 18 motion to dismiss. Signed by Judge Rosemary M. Collyer on 4/4/2014. (KD) (Entered: 04/04/2014)
37 ORDER denying as moot 34 United States' Motion for Reconsideration; granting 18 Defendants' Motion to Dismiss. The Complaint is dismissed. This case is closed. Signed by Judge Rosemary M. Collyer on 4/4/2014. (KD) (Entered: 04/04/2014)
38 LEAVE TO FILE DENIED- Motion to Intervene as Plaintiffs with newly discovered evidence, Rule 24(A),24(B) This document is unavailable as the Court denied its ﬁling.. Signed by Judge Rosemary M. Collyer on 6/3/14. (td, ) (Entered: 06/05/2014)

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 U.S. Acknowledges Killing 4 Americans in Drone Strikes - NYTimes.com

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May 22, 2013
Obama, in a Shift, to Limit Targets of Drone Strikes
By CHARLIE SAVAGE and PETER BAKER
WASHINGTON — President Obama plans to open a new phase in the nation’s long struggle with terrorism on Thursday by restricting the use of unmanned drone strikes that have been at the heart of his national security strategy and shifting control of them away from the C.I.A. to the military.
In his first major speech on counterterrorism of his second term, Mr. Obama hopes to refocus the epic conflict that has defined American priorities since the attacks of Sept. 11, 2001, and even foresees an unspecified day when the so-called war on terror might all but end, according to people briefed on White House plans.
As part of the shift in approach, the administration on Wednesday formally acknowledged for the first time that it had killed four American citizens in drone strikes outside the battlefields of Afghanistan and Iraq, arguing that its actions were justified by the danger to the United States. Mr. Obama approved providing new information to Congress and the public about the rules governing his attacks on Al Qaeda and its allies.
A new classified policy guidance signed by Mr. Obama will sharply curtail the instances when unmanned aircraft can be used to attack in places that are not overt war zones, countries like Pakistan, Yemen and Somalia. The rules will impose the same standard for strikes on foreign enemies now used only for American citizens deemed to be terrorists.
Lethal force will be used only against targets who pose “a continuing, imminent threat to Americans” and cannot feasibly be captured, Attorney General Eric H. Holder Jr. said in a letter to Congress, suggesting that threats to a partner like Afghanistan or Yemen alone would not be enough to justify being targeted.
The standard could signal an end to “signature strikes,” or attacks on groups of unknown men based only on their presumed status as members of Al Qaeda or some other enemy group — an approach that administration critics say has resulted in many civilian casualties. In effect, this appears to be a step away from the less restricted use of force allowed in war zones and toward the more limited use of force for self-defense allowed outside of armed conflict.
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In the speech he will give on Thursday at the National Defense University, Mr. Obama will also renew his long-stalled effort to close the prison at Guantánamo Bay, Cuba. Officials said they would make a fresh push to transfer detainees to home countries and lift the ban on sending some back to Yemen. The president plans to reappoint a high-level State Department official to oversee the effort to reduce the prison population.
The combined actions constitute a pivot point for a president who came to office highly critical of his predecessor, George W. Bush, yet who preserved and in some cases expanded on some of the counterterrorism policies he inherited. Much as Mr. Bush did in 2006 when he acknowledged and emptied secret overseas C.I.A. prisons, Mr. Obama appears intent on countering criticism of his most controversial policies by reorienting them to meet changing conditions.
In his speech, Mr. Obama is expected to reject the notion of a perpetual war with terrorists, envisioning a day when Al Qaeda has been so incapacitated that wartime authority will end. However, because he is also institutionalizing procedures for drone strikes, it does not appear that he thinks that day has come. A Pentagon official suggested last week that the current conflict could continue for 10 to 20 years.
Yet even as he moves the counterterrorism effort to a next stage, Mr. Obama plans to offer a robust defense of a continued role for targeted killings, a policy he has generally addressed only in passing or in interviews rather than in a comprehensive speech. A White House official said he “will discuss why the use of drone strikes is necessary, legal and just, while addressing the various issues raised by our use of targeted action.”
While Mr. Obama may not explicitly announce the shift in drones from the Central Intelligence Agency in his speech, since the agency’s operations remain formally classified, the change underscores a desire by the president and his advisers to balance them with other legal and diplomatic tools. The C.I.A., which has overseen the drone war in the tribal areas of Pakistan and elsewhere, will generally cede its role to the military after a six-month transition period as forces draw down in Afghanistan, officials said.
Drone strikes have already been decreasing in the past few years as targets have been killed and opposition has grown. John O. Brennan, the new C.I.A. director, has been eager to shift the agency more toward espionage, intelligence gathering and analysis and away from the paramilitary mission it has adopted since Sept. 11.
Senator Jack Reed of Rhode Island, a top Democrat on the Armed Services Committee, said that after more than a decade of war it was time to “rebalance” the missions of the Pentagon

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and C.I.A. “The policy is intended to refocus the activities of the intelligence community to collection, which is crucial,” he said.
But Mr. Obama’s moves may provoke criticism from some Republicans who say a law enforcement approach underestimates the continuing threat from terrorism. An aide to Representative Howard P. McKeon of California, chairman of the Armed Services Committee, said his boss would insist on “concrete answers” about what Mr. Obama planned to do with “terrorists who are too dangerous to be released” from Guantánamo.
In his letter to Congressional leaders, Mr. Holder confirmed that the administration had deliberately killed Anwar al-Awlaki, a radical Muslim cleric who died in a drone strike in September 2011 in Yemen. Mr. Holder also wrote that United States forces had killed three other Americans who “were not specifically targeted.”
The American involvement in Mr. Awlaki’s death has been widely reported, but the administration until now had refused to confirm it. Likewise, Mr. Holder confirmed the government’s role in the deaths of Samir Khan, who was killed in the same strike, and Mr. Awlaki’s son, Abdulrahman al-Awlaki, who died in another strike. The letter disclosed the death of a fourth American named Jude Kenan Mohammad but gave no further details.
Mr. Holder defended the actions, saying they were consistent with American law and taken only after careful consideration. “Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during the current conflict, it is clear and logical that United States citizenship alone does not make such individuals immune from being targeted,” he wrote.
Critics were not assuaged. “The Obama administration continues to claim authority to kill virtually anyone anywhere in the world under the ‘global battlefield’ legal theory and a radical redefinition of the concept of imminence,” said Zeke Johnson of Amnesty International. “President Obama should reject these concepts in his speech tomorrow and commit to upholding human rights, not just in word but in deed.”
The lifting of the veil of official secrecy over the Awlaki killing could have broad legal ramifications. The Justice Department on Wednesday afternoon dropped an effort to throw out a California lawsuit seeking documents related to the killing, while a judge here ordered the government to address the disclosure in a wrongful-death lawsuit brought by Mr. Awlaki’s family.

http://www.nytimes.com/2013/05/23/us/us-acknowledges-killing-4-americans-in-drone-str... 11/1/2013

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Mr. Holder, in a speech at Northwestern law school last year, laid out the administration’s basic legal thinking that it could target American citizens deemed to be operational terrorists who pose an “imminent threat of violent attack” and where capture is not feasible.
Mr. Holder’s letter expanded the rationale for the killing of Mr. Awlaki. Mr. Holder said Mr. Awlaki not only had “planned” the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009, a claim that has been widely discussed in court documents and elsewhere, but had also “played a key role” in an October 2010 plot to blow up cargo planes bound for the United States, including taking “part in the development and testing” of the bombs. He added that Mr. Awlaki had also been involved in “the planning of numerous other plots.”
“The decision to target Anwar al-Awlaki was lawful, it was considered, and it was just,” Mr. Holder said.

http://www.nytimes.com/2013/05/23/us/us-acknowledges-killing-4-americans-in-drone-str... 11/1/2013