Aulaqi-Khan Lawsuit: The More You Litigate, the More You Legitimate

In Power and Constraint, I argued (in a chapter summarized here) that the Center for Constitutional Rights litigation strategy for GTMO garnered crucial judicial support for GTMO detentions that in the end significantly strengthened the legitimacy of such detentions.  I think the same thing will happen as a result of the ACLU-CCR lawsuit on behalf of the Al-Aulaqi and Khan families.  In part for reasons outlined by Bobby and Ben, and possibly for many other reasons, the federal courts will rule for the government on some ground, thereby creating judicial precedent that supports, to some degree, what the President has been doing.  Along the way, the government might have to disclose more information than it would like, and it might have to make some controversial (in some quarters) legal arguments.  But on the whole, the result of the lawsuit will be to make the President be better off – in terms of legal support and legitimacy for targeted killing of U.S. citizens – than he was before the lawsuit.  In this context, as in the GTMO context, the more ACLU and CCR litigate, the more they legitimate.