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 AlAulaqi 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 group 7 that has claimed responsibility for numerous terrorist acts 8 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 10CR-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 ” AlAulaqi 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 AlAulaqi “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 13 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 16 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 VerdugoUrquidez 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 AlAulaqi 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 31 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 33 §§ 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 34 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 misconduct 31 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 Al38 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