Judge Rosemary Collyer (US Government Photo)

A federal judge was unable to find no remedy in United States law for a claim that United States citizen’s due process rights were violated when they were targeted and killed by a drone. The case was dismissed because the judge determined the citizen had been properly designated a terrorist, posed a threat to US interests, and the judiciary should not interfere in the areas of “warmaking, national security and foreign relations.”

Essentially, this means the executive branch in the US government can claim the power to collect secret evidence as part of a secret review process and place a US citizen suspected of engaging in terrorist activities on a kill list. The decision to proceed with an operation to kill that citizen can be provided to Congress. Provided that the executive branch offers some legal justification that is persuasive, the president is free to proceed with ordering the execution of this person and deprive him of due process rights he or she would typically enjoy, especially if they still lived in the US. It is not a judge’s place to challenge this act of killing.

The case was filed by the American Civil Liberties Union (ACLU) and Center for Constitutional Rights (CCR). It questioned the legality of drone strikes, which killed US citizen Anwar al-Awlaki, Samir Khan and Abdulrahman al-Awlaki, Anwar’s 16-year-old son. It was brought on behalf of Nasser al-Awlaki, the father of Anwar and grandfather of Abdulrahman.

Claims that their Fourth Amendment rights had been violated were alleged, however, Judge Rosemary Collyer dismissed these claims because “unmanned drones are functionally incapable of ‘seizing’ a person; they are designed to kill, not capture.”

It was argued that their due process rights under the Fifth Amendment were violated. But, in order to have a claim, government officials had to knowingly and not “merely negligently” kill any of these citizens, according to the judge.

She found no evidence to support the fact that Khan or Abdulrahman had been targeted so the judge dismissed these claims, and the ease in which she was able to dismiss the claims is definitely bothersome.

The judge recognized in her decision that Anwar al-Awlaki had been “executed without charge, indictment or prosecution.” There was a “substantive due process claim” that government officials, who were defendants in the case, had been deliberately indifferent 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.”

“The Court does not opine that Anwar al-Awlaki 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-Awlaki ‘shocks the conscience.’ The Court merely holds that the Complaint states a “plausible” procedural and substantive due process claim on behalf of Anwar Al-Awlaki.”

The problem, however, was whether a cause of action could be pursued against government officials, such as former CIA director Leon Panetta, former Joint Special Operations Command (JSOC) Admiral William McRaven, JSOC Commander Lieutenant General Joseph Votel or former CIA director General David Petraeus for allegedly authorizing and directing the strike that killed Anwar al-Awlaki. The court decided no.

“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,” the court found. (Bivens was a case that created a precedent for bringing a case against federal government officials.)

“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 DC 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.”

In other words, there have been cases where it was alleged that actions, which included torture, violated rights and victims were entitled to remedies, but they lost too. Victims did not win because judges maintained they did not have the power to second guess “warmaking” or “national defense powers” that the Constitution placed in the “hands of the executive and legislative branches.”

A US citizen and employee of an American-owned defense contracting firm, who worked as an Arabic translator, was detained at a US military facility near Baghdad. He was subjected to torture and after being released found he was now on watch lists that made it impossible to travel. But a remedy was not granted because remedies have never been extended in cases involving the military, intelligence or national security.

The government’s rationale is that if military officials knew they could be held accountable for detaining and torturing someone who was a US citizen it would get i the way of being able to make decisions without hesitation in “defense” of American “liberty and national interests.” And the same rationale is advanced by the government when it comes to executing US citizens suspected of terrorism without charge, indictment or prosecution—it would get in the way of decision-making to keep America safe.

“This court is not equipped to question, and does not make a finding concerning defendants’ actions in dealing with AQAP generally or Anwar al-Awlaki in particular.”

His father, Nasser al-Awlaki, reacted, “I am deeply disappointed by the judge’s decision and in the American justice system. What I am asking is simply for the government to account to a court its killings of my American son and grandson, and for the court to decide if those killings were lawful. Like any parent or grandparent would, I want answers from the government when it decides to take life, but all I have got so far is secrecy and a refusal even to explain.”

Maria Lahood, a CCR senior attorney, stated, “Judge Collyer effectively convicted Anwar Al-Awlaki posthumously based on the government’s own say-so, and found that the constitutional rights of 16-year-old Abdulrahman Al-Aulaqi and Samir Khan weren’t violated because the government didn’t target them.  It seems there’s no remedy if the government intended to kill you, and no remedy if it didn’t.  This decision is a true travesty of justice for our constitutional democracy, and for all victims of the US government’s unlawful killings.”

And ACLU National Security Project Director Hina Shamsi, one of the attorneys who argued the case, stated, “This is a deeply troubling decision that treats the government’s allegations as proof while refusing to allow those allegations to be tested in court.”

“The court’s view that it cannot provide a remedy for extrajudicial killings when the government claims to be at war, even far from any battlefield, is profoundly at odds with the Constitution. It is precisely when individual liberties are under such grave threat that we need the courts to act to defend them. In holding that violations of US citizens’ right to life cannot be heard in a federal courtroom, the court abdicated its constitutional role,” Shamsi added.

Indeed, the judge found the government’s allegations or evidence to be extremely convincing.

“The fact is that Anwar Al-Aulaqi was an active and exceedingly dangerous enemyof the United States, irrespective of his distance, location, and citizenship,” Collyer explained. “As evidenced by his participation in the Christmas Day attack, Anwar Al-Awlaki 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-Awlaki, a notorious [al Qaeda in the Arabian Peninsula (AQAP)] leader, as authorized by the [Authorized Use of Military Force].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.’” [She was quoting from Lebron v. Rumsfeld, which involved the military detention of US citizen Jose Padilla.]

Whether it is permissible to kill a US citizen, who allegedly poses a threat or not, is a military decision and not one for the courts was part of the ultimate conclusion.

The judge came to this conclusion after accepting the following as facts: the US is “engaged in armed conflict with AQAP,” “Anwar al-Awlaki posed a continuing, imminent threat to the United States,” it was “not feasible to capture him,” the “decision to target him with lethal force underwent rigorous legal and policy review and had the prior approval of congressional oversight committees.”

Indisputably, there is plenty of evidence that Anwar al-Awlaki had some involvement in terrorism, but future targeted US citizens may not be so clearly associated or involved with terrorist groups. What due process will they have to protect from being killed by their own government?

This is all acceptable to the judge because she found nothing wrong with justifying all of this with the AUMF. Thus, one can further conclude from this ruling that the executive branch can place the country on a permanent war footing and the judiciary will never believe it is in a position to challenge the deprivation of life or liberty when the government targets and kills citizens.

The White House can conduct an intra-branch process that effectively creates a secret body of law authorizing capital punishment by flying killer robot and, if any members of Congress in an oversight committee give what officials in the executive branch construe as approval, the person will receive a lethal injection of Hellfire missiles raining down upon them from the sky.

Read the full court decision here.