Judge allows journalist to challenge claimed inclusion on US drone 'kill list'

Wednesday , June 13, 2018 - 10:00 PM

Spencer S. Hsu

(c) 2018, The Washington Post.

A federal judge Thursday refused to dismiss a lawsuit by an American journalist challenging his alleged placement on a “kill-list” by U.S. authorities in Syria, saying he was exercising his constitutional right to due process in court.

The ruling clears the way for Bilal Abdul Kareem, a freelance journalist who grew up in New York, to seek answers and try to clear his name after what he claims were five near-misses by U.S. airstrikes in Syria after he said he was mistaken for a militant because of his frequent contact with al-Qaida-linked militants.

Government attorneys had asked U.S. District Judge Rosemary Collyer of the District of Columbia to toss out the lawsuit, saying Abdul Kareem could not substantiate his claims given the secrecy surrounding targeting decisions and asserting the executive branch’s unfettered authority to conduct military operations abroad.

Collyer, in a 30-page opinion, rejected a unilateral government authority to target a citizen for death, writing, “Due process is not merely an old and dusty procedural obligation .... It is a living, breathing concept that protects U.S. persons from overreaching government action even, perhaps, on an occasion of war.”

Collyer ruled that Abdul Kareem could not challenge the program as arbitrary under administrative law or illegal by statute, but had a “birthright” as a citizen to assert his constitutional due process rights to be heard “and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession.”

Collyer distinguished the case from a 2014 ruling in which she dismissed a challenge to the Obama administration over drone-strike killings of three U.S. citizens in Yemen in 2011, including a U.S.-born al-Qaida planner and propagandist, Anwar al-Awlaki, and a 2010 decision by a different judge finding that al-Awlaki’s father did not have standing in his son’s place while alive to challenge his placement on the list.

In this case, she said, Abdul Kareem was not asking a court to second-guess military decisions made thousands of miles away, nor acting through a proxy, but seeking to directly challenge in court the known procedures in Washington to nominate and place a citizen on the list without notice or challenge.

Abdul Kareem’s “interest in avoiding the erroneous deprivation of his life is uniquely compelling,” Collyer added dryly.

Collyer dismissed as “speculative” a second, noncitizen plaintiff from the suit, Ahmad Muaffaq Zaidan, a former Al Jazeera bureau chief in Pakistan and dual Pakistani-Syrian national, who alleged that a leaked U.S. government document indicated that he was named by a U.S. National Security Agency metadata tracking program allegedly used by the CIA and called Skynet.

In a statement, the men’s lawyers expressed disappointment in Zaidan’s result but called the ruling for Abdul Kareem “a significant victory for constitutional protections and due process” in the face of the government’s invocation of national security interests.

“We are gratified that the Court recognized that, as a U.S. citizen, Mr. Kareem has the right to be heard in Court before his government can decide to kill him, and we look forward to these proceedings continuing to a final resolution,” said Tara Plochocki, partner with the Lewis Baach Kaufmann Middlemiss law firm.

Collyer, at a May 1 hearing, voiced concern over whether national security concerns trump individuals’ rights in the U.S. targeted-killing program, a question left open by courts after the Sept. 11, 2001, terrorist attacks.

The case comes as President Trump’s administration has stepped up drone and other air attacks after seeking to ease the geographical limits of such lethal strikes, as well as the thresholds of acceptable civilian casualties and other constraints.

The U.S. government neither confirmed nor denied whether Abdul Kareem or Zaidan has been designated a national security threat. Justice Department attorneys argued that if Abdul Kareem’s near miss experiences were true as alleged, they were more likely due to his choice to work as a journalist amid Syria’s brutal, multisided civil war, or actions by other combatants.

Collyer agreed with the government that challenges to the law and statutory authority of targeting decisions on grounds posed “political questions” reserved to the executive branch and off limits to court review. Collyer called it a “truism” that courts are “not good judges” of real-time war zone assessments of highly classified intelligence, foreign relations or military decisions.

A Justice Department spokeswoman did not immediately respond to a request for comment.

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