Today a federal court dismissed a lawsuit by the father of Anwar al-Awlaki, the US citizen and al Qaeda operative whom the Obama administration has declared a target for killing. Robert Chesney provides a useful outline of the ruling. Jack Goldsmith notes that the ruling, while a win for the government, begins to outline some constraints on the President’s authority to order the assassination of a citizen. The opinion suggests that if Awlaki were to surrender to the US embassy in Yemen, it would be illegal to simply shoot him. It offers that Awlaki might be able to seek judicial relief while in hiding if he communicated with attorneys remotely. And the ruling also, in the court’s words, “does not hold that the Executive possesses ‘unreviewable authority to order the assassination of any American whom he labels an enemy of the state.'” The opinion sketches out a test that leans mainly on determinations of the Director of National Intelligence. Goldsmith concludes:
In short, in a case the government wins that technically rules only on threshold issues, the court (a) states that domestic law governs the president’s targeting power outside the United States, to some degree; (b) implies that someone deemed a terrorist by the government who is hiding in another country can have standing to seek judicial relief; and (c) limits its political question ruling to terrorist targets approved by Congress and the DNI. I should note that points (a) and (c) were points stressed in the government’s briefs as limiting principles. If they are small victories for ACLU and CCR, they are victories invited by the government. But whatever their origins, these points are now in a judicial opinion. They are all new developments in the judicial regulation of wartime that will influence executive branch lawyers, and thus shape USG targeting decisions, going forward.
Goldsmith’s whole analysis is here.