Academic

Al-Aulaqi and standing

By Tung Yin

The district court in the al-Aulaqi case has dismissed the lawsuit brought by al-Aulaqi's father on standing, sovereign immunity, and political question grounds, as summarized by Bobby Chesney at Lawfare.

In reading the part dealing with al-Aulaqi's dad's lack of standing, I was struck by the contrast between this case and that of Yaser Esam Hamdi.  As Judge Bates noted:

[W]hile Anwar Al-Aulaqi may have chosen to ?hide? from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. . . . The Court?s conclusion that Anwar Al-Aulaqi can access the U.S. judicial system by presenting himself in a peaceful manner implies no judgment as to Anwar Al-Aulaqi?s status as a potential terrorist. All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities.

That seems indisputably right.  In Hamdi's case, on the other hand, the courts consistently found that Hamdi's father did have standing to pursue the case on Hamdi's behalf.  What was the difference?  Hamdi was already in the government's custody at that point, and was being held without access to counsel or family members as an "enemy combatant."  Thus, Hamdi could not avail himself of the legal system, because the government was denying him access to that very same system.  Accordingly, his father properly had standing to pursue the challenge to the government's ability to detain Hamdi.

Full post as published by The Yin Blog on December 07, 2010 (boomark / email).