Application for Judicial Review against the US Department of State and US Secretary of State
United States of America
Armed Conflict in Yemen, Armed Conflict in Libya
United Arab Emirates
Administrative Challenge (Judicial Review)
In this complaint, the plaintiffs have called for the review of a series of decisions that resulted in a policy shift to permit the export of arms and military goods to the UAE. This decision narrowly made it through Congress, despite significant concerns being expressed by many stakeholders, at which point the claimants sought to challenge its procedural legality in court.
The crux of this claim is that the initial decision by the State Department to allow the export of the contested goods was a rushed and arbitrary process in the final months of Trump’s presidency that did not follow all required procedural measures as the administration tried to get this contentious matter approved prior to the end of its term. In particular, the plaintiffs relied on the lack of a valid and reasoned justification for the decision in order to argue a violation of governing domestic legislation.
The judge’s decision on whether to dismiss the case or proceed to trial is still awaited.
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Case Development: Opposition to the State Department's Motion to Dismiss
The plaintiffs reassert that they are merely seeking to hold the government to its procedural obligations rather than challenging its foreign policy decisions.nnn In particular, the plaintiffs...
The submitted arguments proceeded on two main grounds.
First, that the State Department had failed to take into account compelling evidence from UN bodies, NGOs as well as its own reporting, that the exported arms are likely to be involved in ongoing armed conflicts in Yemen and Libya and diverted to non-state actors.
It was specifically argued that pursuant to the AECA, the export authorisation should not have gone ahead as it posed a threat to world peace and risked undermining US national security. Of particular interest, the plaintiffs argued that the risk of diversion to unintended actors, such as Al Qaeda, could jeopardise the US’ own national security, in addition to the threat to peace posed by the potential use of the exported arms in ongoing conflicts.
Second, that the State Department had not properly justified the change in its arms export policy. In support, the plaintiffs relied on evidence of previous situations in which the US had refused to export arms to problematic destinations, such as Turkey, due to the threat which it considered the export could pose to its own national security.
The State Department opposed this claim on two main grounds.
First, that the New York Centre for Foreign Policy Affairs were not directly injured by the export decision as they were not affected by the arms sales and therefore did not have standing. Second, it claimed that arms export decisions are non-justiciable as they are political questions that are subject to ‘unreviewable agency discretion’.
This was re-opposed by the claimants, who maintained that they have standing to bring the case due to the impact of the new arms export policy on their mission and resources as an NGO working on challenging problematic US arms exports. They also joined additional plaintiffs to the complaint, who had clearly directly suffered harm from the use of UAE weapons in Libya. On the justiciability argument, the claimants submitted that they were not questioning the political considerations that feed into the State Department’s choice of who to export to, but rather challenging the procedural inadequacies of the process by which this decision was made – in particular, the lack of a reasoned explanation for the decision.
The Court’s decision on whether to dismiss the case or proceed to trial is still awaited.
01 Nov 2020
Announcement by the Secretary of State of its decision to export arms and military goods to the UAE.
20 Dec 2020
Claim enters the courts. Complaint filed before the US District Court for the District of Columbia seeking the judicial review of an authorisation to export arms to the UAE.Read the original complaint here
14 Apr 2021
Amended complaint filed, adding additional plaintiffs who had been direct victims of air attacks by the UAE.Read the amended complaint
12 May 2021
Government Response. State Department files a motion to dismiss the claim, on the grounds of lack of standing of the plaintiffs and the non-justiciability of the claim, invoking national security considerations.Read the motion to dismiss
18 Jun 2021
Plaintiffs' response to motion to dismiss. The plaintiffs maintain that they have the requisite standing and interest to challenge the contested decision and that the Court is competent to scrutinise it.Read the plaintiff's opposition to the State Department’s Motion to Dismiss
16 Jul 2021
Government response in support of motion to dismiss. The State Department defends its arguments based on lack of standing, non-justiciability and argues that the Court should not allow for external actors to intrude on sensitive US foreign policy and national security considerations.
Contact the Claimants
This claim has been brought by two NGO claimants – the New York Center for Foreign Policy Affairs (NYCFPA) and Human Rights Solidarity. They are joined in this case by two associations of the families of victims of air attacks in Libya that involved UAE operated weapons, as well as several named ‘Refugee Plaintiffs’ who were survivors of air raids against a detention centre for refugees and undocumented migrants in Libya reportedly carried out by the UAE. The claimants were represented by Matthew Collette of Massey & Gail LLP.
If you would like to know more about this case, please get in touch with our primary contact Justin Russell at the New York Center for Foreign Policy Affairs by email.