Last night, shortly after the Ninth Circuit blocked enforcement of Donald Trump’s immigration executive order, I saw this tweet:
I only sort of think I'm exaggerating when I say an enemy combatant would have standing to seek an injunction on a bombing campaign.
— (((≠))) (@ThomasHCrown) February 10, 2017
Mr. Crown was more correct than he knows. Thanks to my time machine, I was able to secure a copy of the following opinion, dated October 18, 2019. It’s from a panel of Ninth Circuit judges, per curiam:
Abu Bakr al-Baghdadi and the State of California, et al., v. Donald J. Trump, President of the United States
This matter comes before the court through the Trump administration’s appeal from the United States District Court for the Northern District of California’s worldwide ban on American bombing raids against alleged members of the so-called Islamic State, better known as ISIS. The alleged leader of ISIS, Abu Bakr al-Baghdadi filed suit to stop the American aerial offensive, and the state of California intervened on his behalf.
Mr. Baghdadi claims that the bombing campaign violates his clearly-established rights under the Fifth Amendment to the United States Constitution. The state of California claims that the systematic attacks are depriving its public university system access to a number of Islamic legal scholars, including Mr. Baghdadi. Faculty members testified during the district court proceedings that they wished to invite Mr. Baghdadi to lecture students regarding his master’s thesis in Koranic recitation, and Mr. Baghdadi testified that a number of ISIS fighters are indeed actively seeking to enter the United States. The government does not dispute that they will be unable gain entry if their remains are spread across the rubble of Raqqa.
In addition, California argues that the Trump Administration’s efforts to kill Mr. Baghdadi are motivated by anti-Islamic animus and thus violate the Establishment Clause and the Equal Protection Clause. As evidence to support their claims, California points to prestigious faculty appointments held by non-Islamic alleged terrorists like William Ayers and Bernardine Dohrn and to numerous Trump campaign statements declaring an intention not just to ban Muslims from entry to America but also, more ominously, to “bomb the sh*t out of” ISIS – an explicitly religious organization.
After hearing oral arguments via conference call, with Mr. Baghdadi’s counsel participating through a series of threatening tweets, this court affirms the district court order and enjoins bombing raids directed at ISIS or its members, subsidiaries, and affiliates.
We begin our analysis with our 2017 opinion in Washington v. Trump. In that case we noted that the Fifth Amendment of the Constitution prohibits the Government from depriving individuals of their “life, liberty, or property, without due process of law.” Moreover, “the Government may not deprive a person of one of these protected interests without providing ‘notice and an opportunity to respond,’ or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered.”
Critically, we also held that the due process rights articulated in the Fifth Amendment attach not merely to citizens and persons in the United States, but also to persons seeking to come to the United States. At a minimum, then, Mr. Baghdadi (and any other members of ISIS seeking to travel to the U.S.) are entitled to “notice and a hearing” prior to having their travel interrupted by Hellfire missile. While Mr. Baghdadi is unquestionably on notice of the government’s intention to kill him (notice that he describes as “loud, daily, and terrifying”), he also unquestionably has not had an opportunity to contest the charges against him.
In addition, Mr. Baghdadi raises credible claims of religious bias in the American bombing campaign. He asserts that American operations violate the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. As we held in Washington v. Trump, “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” And that evidence is indeed damaging. Mr. Trump has repeatedly labeled ISIS as explicitly religious, calling it “radical” and “Islamic,” and his avowed intention to “bomb the sh*t” out of ISIS cannot be divorced from this religious context.
Furthermore, the state of California is indeed correct that American universities have benefited widely from the scholarly insights of alleged non-Islamic bombers like Mr. Ayers and Ms. Dohrn – in spite of the fact that they were reportedly involved in multiple acts of terrorist violence, Mr. Ayers in fact once told the New York Times, “I don’t regret setting bombs” and expressed regret that “we [his alleged terrorist organization] didn’t do enough.” It is a foundational principle of equal protection jurisprudence that similarly-situated individuals should be treated alike. The Trump administration has failed to articulate why a non-Islamic alleged terrorist gained tenure while a squadron of Super Hornets prevents an Islamic alleged terrorist from presenting papers at Berkeley.
Just as in Washington v. Trump, “the Government has pointed to no evidence” that Mr. Baghdadi or any of the countless, nameless targets of American bombs “has perpetrated a terrorist attack in the United States.” Therefore, the balance of the equities dictates that we must rule for Mr. Baghdadi. Ending the bombing campaign in Syria will have the salutary effect of saving the taxpayers a considerable sum of money and of ending systematic discrimination against a marginalized religious minority. Continuing the campaign means that it is only a matter of time before Mr. Baghdadi and his confederates suffer the irreparable harm of a JDAM attack.
The Government’s motion for a stay pending appeal is DENIED. The war is enjoined.