Five thoughts on Judge Bates’ Al Aulaqi decision:
First, as far as I’m concerned, there is really only one surprising thing about the decision, whose holdings any Lawfare reader could have anticipated relatively precisely. The surprise is that Judge Bates reached so many of the justiciability questions the government raised about the suit. He could, after all, have stopped after concluding that Anwar Al Aulaqi’s father lacked standing to bring the case and that he had failed to state a claim under the Alien Tort Statute. But he went on. He went on to rule that the case presented a non-justiciable political question as well. Indeed, virtually the only point on which he declined to rule in the government’s favor was the one which it had specifically asked him not to reach if he could avoid doing so: Whether the case should also be dismissed because of the military and state secrets privilege. This opinion, in a quiet firm way, was designed to make a statement: that whatever the merits of the ACLU and CCR’s claim, there’s simply no way into the subject for a court.
Second, the decision is, I think, bullet-proof on appeal to the D.C. Circuit. I can imagine no panel of that court that will reverse this opinion.