Over at Lawfare, Bobby Chesney highlighted a recent NPR story (“Al-Qaida, Affiliates Showing Greater Coordination“) which notes that U.S. officials are claiming that there are increasing operational ties between Al Qaeda and Al Qaeda on the Arabian Peninsula.  Bobby notes that this may have an impact on the al-Aulaqi litigation, specifically:

The nature of the AQ/AQAP relationship of course is central to the debate regarding the authority of the United States government to use military force in Yemen, and hence central to the merits issues in the al-Aulaqi litigation.  For that matter, it may also be central to some of the issues that the government has raised in its motion to dismiss (see Ben’s summary of the oral argument here), either because the court might decide it may not second guess the executive’s judgment regarding the AQ/AQAP relationship  or because the court might decide that the intelligence relevant to shedding light on that relationship in any event implicates the state secrets privilege.

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If it turns out that the ACLU/CCR suit will depend to some extent on the nature of the AQ/AQAP relationship, could the government defend itself without having to produce such communications?

I thought I would add to this an interesting point raised in the U.S. government’s OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS in the al-Aulaqi litigation.  There, the government explains how Al-Aulaqi was designated a “Global Terrorist” by the U.S. Department of the Treasury, then four days later “the United Nations’ Al-Qaeda and Taliban Sanctions Committee added him to its Consolidated List of individuals and entities associated with al-Qaeda, Osama bin Laden or the Taliban.”  The designation specifically noted that al-Aulaqi was:

“participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of”, “recruiting for”, and “otherwise supporting acts or activities of ” Al- Qaeda (QE.4.01) and Al-Qaeda in the Arabian Peninsula (QE.A.129.10).” (emphasis mine) (page 6-7 of the Govt.’s brief)

In short, if one doesn’t trust the U.S. and its designation of al-Aulaqi, one still has to disbelieve the United Nations and their separate designation of al-Aulaqi.  That designation goes farther than the U.S. designation, finding that al-Aulaqi is “associated with Al-Qaida, Usama bin Laden or the Taliban…” It’s difficult to see how the Federal Courts will disregard the collective wisdom of the intelligence community, the military, other components of the Executive Branch, and a United Nations Security Council Special Committee dedicated pursuant to Security Council Resolution 1267 to terrorism and these specific designations.  These types of questions seem to fall squarely within the political question doctrine, directly impacting foreign affairs and a court’s decision intercede to make its own determination regarding the propriety of al-Aulaqi as a lawful target would be a pretty dramatic encroachment of Article III courts into matters committed to the political branches.  CLICK “READ THE FULL ENTRY” TO CONTINUE READING.

For those unfamiliar with the committee, here is a description of the significance of the consolidated designation list:

As noted, the Committee, under its mandate, has established and maintains a list of names of individuals and entities with respect to Al-Qaida, Usama bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated with them (“the Consolidated List”). The List currently contains around 500 names and is split into four sections covering (1) individuals and (2) entities associated with the Taliban, and (3) individuals and (4) entities associated with Al-Qaida. The Consolidated List serves as the foundation for the implementation and enforcement of sanctions against Al-Qaida, Usama bin Laden, the Taliban and their associates. The Committee is continuously seeking to improve the information on the Consolidated List to ensure that the sanctions measures can be implemented effectively.

According to Security Council Resolution 1904, to get on the list one must engage in:

acts and activities that indicate that an individual or entity is associated with Al-Qaida, Usama bin Laden or the Taliban, and thus is eligible for designation on the Consolidated List and subject to the three sanctions measures. The resolution specifically states that such acts or activities include:

  • participation in the financing, planning, facilitating, preparing or perpetrating of acts or
  • activities by, in conjunction with, under the name of, on behalf of, or in support of;
  • supplying, selling, or transferring arms and related materiel to;
  • recruiting for; or
  • otherwise supporting acts or activities of;

Al-Qaida, Usama bin Laden or the Taliban, or any cell, affiliate, splinter group or derivative thereof.

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