Judge Collyer similarly dismisses the defendants’ Fifth Amendment due process claims on behalf of Adulrahman al-Aulaqi and Khan because “[m]ere negligence does not give rise to a constitutional deprivation” of due process, and Abdulrahman and Khan “were not targeted and their deaths were unanticipated.” However, because plaintiffs allege that Anwar al-Aulaqi was intentionally targeted and killed by defendants, the court finds that the plaintiffs’ complaint “states a ‘plausible’ procedural and substantive due process claim on behalf of Anwar al-Aulaqi.”
A plausible claim is not enough to save the plaintiffs’ case, however. Judge Collyer finds that even if the government violated Anwar al-Aulaqi’s due process rights, there is “no available remedy under U.S. law for this claim.” No court has found, nor even discussed, whether Bivens remedies are available for deprivation of life without due process based on the overseas killing by U.S. officials of a U.S. citizen considered to be an enemy combatant. In analogous due process-based Bivens actions for military detention and alleged abuse of U.S. citizens, the court points out that circuit courts, including the D.C. Circuit in Doe v. Rumsfeld, “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.” Because Congress in the 2001 Authorization for Use of Military Force granted the president the power to “use necessary and appropriate military force against al-Qa’ida and affiliated forces,” the court “hesitate before implying a Bivens claim” challenging the executive branch’s exercise of that authority. The U.S. government has determined that Anwar al-Aulaqi was a member of al-Qaeda in the Arabian Peninsula and a threat to U.S. national security and the court will not challenge that assessment.
