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You Might Have a 'Uniquely Compelling' Reason to Find Out Whether Your Government Has Placed You on a Kill List

Bilal Abdul Kareem has been nearly droned in Syria five times already. A federal judge agrees his lawsuit over the matter can proceed.

It's just possible, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia Circuit concluded in a decision last week, that being a journalist in Syria placed on a kill list by your own government might constitute a violation of your First, Fourth, and Fifth Amendment rights.

Fibonacci Blue on Foter.com / CC BYFibonacci Blue on Foter.com / CC BY

The lawsuit started with Ahmad Muaffaq Zaidan and Bilal Abdul Kareem, two journalists from the Middle East, who often report on terrorism-related stories. Zaidan, who has worked for Al Jazeera for over 20 years, thinks the United States has labeled him as a terrorist, apparently because his work has him interacting with so many of them (Zaidan has interviewed Osama Bin Laden, among others).

Kareem, an American citizen and freelance reporter, has been at the site of five aerial bombings while working in Syria in one three-month period.

Both believe they might be on a secret U.S. government "kill list" and sued various government officials from President Trump on down last year to find out if they are.

Judge Collyer, allowing the lawsuit to proceed at least in part, wrote that their complaint asserted being on such a kill list would be "arbitrary, capricious and an abuse of discretion" and "violates the prohibition on conspiring to or assassinating any person abroad" and "violated due process because Plaintiffs were provided no notice and given no opportunity to challenge their inclusion."

Further, placing them on the kill list "violated the First Amendment because it 'has the effect of restricting and inhibiting their exercise of free speech and their ability to function as journalists entitled to freedom of the press.'"

Kareem, the citizen, asserts on his behalf that being on the kill list "violated the Fourth and Fifth Amendments because it constituted an illegal seizure and 'seeks to deprive [him] of life without due process of law.'"

The government claimed Zaidan and Kareem have no standing to sue and that this whole kill list thing is a "political question" outside the jurisdiction of the federal courts.

Judge Collyer disagreed, at least as applied to U.S. citizen Kareem. Collyer did agree that when it comes to foreigner Zaidan, who is unable to prove he was indeed on any kill list, "the Court finds no allegations in the Complaint that raise that possibility above mere speculation. Accordingly, the Court finds Mr. Zaidan has failed to allege a plausible injury-in-fact and therefore has no standing to sue."

But the legal situation for Kareem is different, the judge insisted. She noted that "two of the attacks [at or near Kareem] involved his place of work, one involved his own vehicle, one involved a work vehicle in which he had been traveling immediately before, and one hit a location from which he had just walked away."

The government insisted, well, Syria's a real violent place these days and lucky for him he hasn't been killed being surrounded by so much war. Kareem's problems, the government claimed, are not "attributable to anything more than a journalist reporting from a dangerous and active battlefield."

"While it is plausible that Mr. Kareem is not being targeted by the United States," Collyer wrote, "it is also plausible that Mr. Kareem's multiple near-miss incidents were caused by Defendants' decision to include him on the Kill List and were, therefore, caused by Defendants' actions."

Collyer was unimpressed by the government's argument that this is all military business and thus not subject to judicial second-guessing. The war aspect is irrelevant, the judge maintained, since the injury Kareem alleges is the fact that he was placed on a kill list back in D.C. "Mr. Kareem complains of an alleged decision to authorize a lethal strike against him and not a decision in the field to attempt to carry out that authorization. He wants the opportunity to persuade his government that he is not a terrorist or a threat so that the alleged authorization to kill is rescinded."

Collyer used that distinction to differentiate her decision from some precedents regarding drone attacks that were seen as more specifically about a judge's second-guessing of military decisions in the field. That's not what Kareem is trying to do here, Collyer concluded. "It remains a truism that judges are not good judges of military decisions during war. The immediate Complaint asks for no such non-judicial feat; rather, it alleges that placement on the Kill List occurs only after nomination by a defense agency principal and agreement by other such principals, with prior notice to the President. The persons alleged to have exercised this authority are alleged to have followed a known procedure that occurred in Washington or its environs."

Collyer did agree with the government that certain counts in the original suit should be dismissed, including, "whether Defendants complied with the Presidential Policy Guidance [for putting people on a kill list]," which "is a political question the Court must refrain from addressing" since the guidance itself is so vague that it "provides no test or standard that must be satisfied before the government may add an individual."

In other words, the kill list policy is so inherently arbitrary there is no way to procedurally abuse it.

Similarly, "the process of determining whether Defendants exceeded their authority or violated any of the statutes referenced in the Complaint would require the Court to make a finding on the propriety of the alleged action." But that, Collyer wrote, "is prohibited by the political question doctrine."

In other words, the court can't consider whether a government act was a good idea, merely whether it violated a specific law or constitutional provision.

Luckily for Kareem, and for the larger issue of justice in executive power, the judge reasoned that the whole kill list process might have "denied Mr. Kareem his rights to due process and the opportunity to be heard and deprived him of his First, Fourth, and Fifth Amendment rights."

As Collyer concluded in letting those aspects of Kareem's case move forward:

Mr. Kareem alleges that the Defendants targeted him for lethal force by putting his name on the Kill List, which he deduces from five near misses by drones or other military strikes. As a U.S. citizen, he seeks to clarify his status and profession to Defendants and, thereby, assert his right to due process and a prior opportunity to be heard. His interest in avoiding the erroneous deprivation of his life is uniquely compelling.

Mr. Kareem does not seek a ruling that a strike by the U.S. military was mistaken or improper. He seeks his birthright instead: a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession. The D.C. Circuit and the Supreme Court have previously held that a citizen "must have a meaningful opportunity to challenge the factual basis for his designation as an enemy combatant."

This does not mean Kareem has won his case, merely that the government has failed to have it thrown out of court. Collyer acknowledged that it is not yet settled fact whether Kareem even is on a kill list, but while "the Court finds that Mr. Kareem's allegations may be wrong as a matter of fact... Complaint presents them in a plausible manner."

Opposing drone strikes on U.S. citizens was the central point behind Sen. Rand Paul's (R-Ky.) reputation-making 2013 filibuster, and for good reason: There is nothing more tyrannical than the power to specifically target someone for murder absent any judicial proceedings, which, alas, is standard operating procedure for the U.S. government thanks to our endless and impossible Forever War on Terror.

Photo Credit: Fibonacci Blue on Foter.com / CC BY

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  • Eidde||

    "What's this plaintiff doing here? He's supposed to be...I mean he has no proof he's on a kill list!"

  • ||

    Until he turns up dead and presents it as evidence he's on a kill list it's statistically impossible to know if he's actually on a government kill list, and the government is innocent until proven guilty.

  • Longtobefree||

    Just dying in a war zone is not proof you were on a list - - - - -

  • Fist of Etiquette||

    He has no standing until he's no longer standing.

  • loveconstitution1789||

    Now you're just lying.

  • SQRLSY One||

    "He has no standing until he's no longer standing."

    And then he has no standing, since he's not standing! It's the new version of, the ONLY way you can prove that you're NOT a witch, is to show that you can be drowned to death!

  • IceTrey||

    Catch-22

  • BambiB||

    Judge Collyer, allowing the lawsuit to proceed at least in part, wrote that their complaint asserted being on such a kill list would be "arbitrary, capricious and an abuse of discretion" and "violates the prohibition on conspiring to or assassinating any person abroad" and "violated due process because Plaintiffs were provided no notice and given no opportunity to challenge their inclusion."

    Where was this judge during the Obozo administration? And why isn't Obozo in prison?

  • The Last American Hero||

    Because of a combination of a D by his last name and a melanin force field that deflects all media attention from his crimes.

  • Eidde||

    There's also the Sixth Amendment - criminal charges to be heard by a jury, not committee of officials in Washington.

    And the Fifth Amendment - nobody to be held to answer for a capital crime without being accused by a grand jury.

    And if he's suspected of treason, there are further procedural requirements.

    "But we're not charging him with a crime - we're just - I mean we're *allegedly* just - killing him for being a terrorist."

    But if it's so easy to kill alleged criminals without a trial, all these procedural guarantees would just be a big Potemkin village.

  • Agammamon||

    A village for Pokemon?

  • colorblindkid||

    Government approved targeted assassinations of US citizens without due process is by far the most terrifying development in my lifetime, and its creator got a Nobel Peace Prize.

  • Eidde||

    Well, it was a prize for Not Being Bush, and the kill-list doesn't seem to have been a Bush policy, so he was Not Bush, just like the award intended to commend him for being. QED.

  • Longtobefree||

    TA-DA!

  • Number 2||

    And he was a Constitutional Scholar, too!

  • The Last American Hero||

    Only a Constitutional Scholar could find the Pen and Phone clause in the Constitution.

  • loveconstitution1789||

    Every Libertarian at Reason is on a government kill list by virtue of speaking to limit this leviathan we call government.

  • Just Say'n||

    I don't know about that. The government doesn't typically drone controlled opposition. They're useful

  • Libertymike||

    So, Tony can breathe easy?

  • Longtobefree||

    Well, maybe not so much for Tony(s)

  • Citizen X||

    I'm as wary of state power as the next guy, but i don't think this is true at all.

  • Just Say'n||

    Citizen X is no longer with us. He got droned doing what he loved- gargling balls

  • Citizen X||

    Gargling the balls of FREEDOM.

  • loveconstitution1789||

    Those balls have been rode hard and put away wet.

  • loveconstitution1789||

    I have been on some lists. Not kill lists, but lists non the same.

    I don't get 'special treatment' at the airport anymore and local police don't fuck with me anymore.

    These bureaucrats get tired of depositions where they're asked about their secret methods of stupidity.

  • Chipper Morning Baculum||

    That's a laugh. When have you ever called to limit the government? I honestly can't recall.

  • loveconstitution1789||

    You can't read, so how would you know?

  • Fist of Etiquette||

    Opposing drone strikes on U.S. citizens was the central point behind Sen. Rand Paul's (R-Ky.) reputation-making 2013 filibuster...

    Reputation for being a grandstanding, self-serving, anti-Obama dick.

  • Hank Phillips||

    Note to foreign readers: "grandstanding, self-serving, anti-Obama dick" is longhand for "Republican politician"

  • Longtobefree||

    On the other hand, maybe he is just on the list of collateral damage candidates because he spends so much time with terrorists in a war zone?
    Was Ernie Pyle on a kill list?

    Seriously, even the CIA/FBI/NSA/DHS/anyothergroupofletters is not dumb enough to document such a list. They just try to kill terrorists, and due to the nature of military operations, there is always a good chance others will get killed or injured. I have commercial products in my home that warn improper use may cause injury or even death. I would expect that travel in a war zone does too.

  • colorblindkid||

    While I agree this guy is clearly just hanging around terrorists a lot, there is indeed a list. Snowden forced the government to acknowledge it. And it is horrifyingly called a Disposition Matrix. It is not imagined.

  • Eidde||

    As in, "we'll put you in a prone position, and you'll stay in dis position until Judgment Day."

  • Citizen X||

    The goddamn New York Times reported on the kill list back in 2012.

  • loveconstitution1789||

    You just made the list...buddy!

  • colorblindkid||

    Yes. There were articles. There were some op eds. There were a few stern letters written.
    When people complain that the media doesn't cover shit, mostly it's a complaint about the level of coverage and outrage by the media. Sure you'll find an article on CNN on some sub-page about everything. The NYT will write a short article and maybe an op ed.

    But there was 1/100th the amount of news coverage and outrage about the Disposition Matrix than half the fucking stupid shit they freak out about on Trump.

  • Sometimes a Great Notion||

    STORMY!!

  • ||

    +1 separating parents from their children and deporting them to Iraq.

  • Longtobefree||

    Bent a personal rule and read the NYT link. Shocked, shocked, to learn in 2012 the NYT cited named sources.

  • The Last American Hero||

    The NYT article was intended to be a complimentary, showing how tough Obama was on terror headed into the election. Then a few people started questioning when they POTUS got the authority to order assassinations.

  • JoeBlow123||

    I was not aware of this. Thanks for sharing.

  • Cynical Asshole||

    Just curious - what rock have you been living under, and is there room under there for one more? I ask because it must be nice to be blissfully unaware of just how tyrannical our government has grown over the past decade or two.

  • Longtobefree||

    "Where ignorance is bliss, 'tis folly to be wise"

  • JoeBlow123||

    I was deployed for 6 months out of the year on an aircraft carrier for three years in a row when this was news story was published. I was not following the news.

  • ||

    Seriously, even the CIA/FBI/NSA/DHS/anyothergroupofletters is not dumb enough to document such a list.

    At the very least, because there's no predicting the order at which you successfully neutralize targets, they'd probably use a doubly-linked list.

  • Scarecrow Repair & Chippering||

    Probably not enough entries to require any fancy tree or hash.

  • Just Say'n||

    Nothing says "free country" more than having the executive construct a secret list of baddies to be killed without any oversight from any other branch of government and then hide who is or isn't on such a list.

  • Eidde||

    Publishing the list would spoil the surprise!

  • Just Say'n||

    Also, we all realize that in about a month we'll read newspaper headlines breathlessly declaring "Trump Administration Refuses to Release Contents of Secret 'Kill List'"

  • colorblindkid||

    Which they will credit him with creating, like our immigration policies and the war in Yemen.

  • Just Say'n||

    Yeah, but on second thought I'd take it. If we could have a real national conversation about this travesty, I guess it would be better than the silence we've had ever since Paul's filibuster

  • Citizen X||

    I'm still hopeful that, someday, the thrust of the conversation will shift from "Trump sucks" to "hey, maybe no one should have this kind of power, ever."

  • Just Say'n||

    If only there was a way to convince the press that Trump started all the wars overseas and the Patriot Act maybe we'll get a constant drum beat of opposition from journalists. That would be amazing.

  • loveconstitution1789||

    Maybe on the 'next' two-week news cycle.

  • Citizen X||

    Even then i'd expect that opposition to be based on principal rather than principle.

  • Cynical Asshole||

    BWAAHAHAHAHAHAHAHA!!!111!!111!!!!!!! Good one!

  • Chipper Morning Baculum||

    I'm still hopeful that, someday, the thrust of the conversation will shift from "Trump sucks" to "hey, maybe no one should have this kind of power, ever."

    That's easy, man. Step one: entirely change who we are as a country.

  • Cy||

    Chuck Norris approves this message.

  • Just Say'n||

    "The government is keeping the names of the individuals on the kill list secret, so as to protect the individuals on that list"

    This would be the most Kafkaesque argument ever made by the government, which is why I fully believe they will make this argument in court. We live in truly insane times

  • John C. Randolph||

    Not to mention conducting military operations with no declaration of war.

    -jcr

  • Longtobefree||

    Well, the last declared war was numbered, so - - - - -

  • The Last American Hero||

    Hey now, those were kinetic military actions. Do you even Obama, bro?

  • Eidde||

    Look, there's no reason to be surprised by this.

    We know the government is Santa Claus, and everyone knows Santa has a Nice List *and* a Naughty List.

  • loveconstitution1789||

    Its been checked twice.

  • Eidde||

    Due Process!

  • Ken Hagler||

    Certainly, it's called "Campaign Contributors."

  • Longtobefree||

    Yeah, but she didn't get elected

  • The Last American Hero||

    CS Lewis covered this. It's the N.I.C.E list.

  • Cy||

    Theoretically, yes. If you're nice and you're on the Social Security list, they'll give you money when you reach a magical age. If you're not nice, they'll take it all away.

  • Just Say'n||

    What you call "killing people with killer robots from the sky", your betters refer to as "people exploding with freedom". Like how we freedom'd the shit out of Iraq, Libya, Yemen, Afghanistan, etc

  • Cy||

    I know a 1/2 million dead Iraqis who're ecstatic we liberated their country from themselves.

    Murica!

  • Jerryskids||

    I don't have high hopes of this guy overcoming the Catch 22 hurdle of having to show he's not on a list for good reason before the government will disclose whether or not he's on a list. Like with the FOIA requests where you have to know that a certain document exists before the government will confirm the document exists.

  • DajjaI||

    At the risk of getting banned again by Reason - I would like to ask a question. What's the opposite of a woodchipper for when a judge does something halfway decent?

  • Citizen X||

    You mean, if a judge does their fucking job? Not actively increasing the amount of injustice in the world is, like, the bare minimum job requirement for a judge. Ain't nobody deserve a cookie for doing the bare minimum, even if their cohorts sometimes don't even rise to that level.

  • Eidde||

    As long as you bake them for everyone who wants them.

  • Agammamon||

    Jokes about communism are not funny

    Unless everyone gets them.

  • DajjaI||

    Your tears... Hold stillllllll.....

  • ||

    Ain't nobody deserve a cookie for doing the bare minimum,

    Even then, we'll hand them a paycheck and a pension. Deserve's got nothing to do with it.

  • sarcasmic||

    Fleshlight.

  • Citizen X||

    Okay, but all the judges have to share it.

  • Ken Shultz||

    Kinda breaks the definition of paranoia, doesn't it?

    What if the most rational assumption to make is that America's clandestine forces have you a secret kill list?

    Or maybe just because you're paranoid, that doesn't mean everyone isn't out to get you.

  • ||

    What if the most rational assumption to make is that America's clandestine forces have you a secret kill list?

    This, IMO, was the brilliance of Trump's allegation that his phones were tapped. It's almost certain that between the NYPD, FBI, and NSA the statement is true for pretty much anyone in the US.

  • Longtobefree||

    The only thing worse than being paranoid is finding out you aren't.

  • Hank Phillips||

    "As Collyer concluded in letting those aspects of Kareem's case more forward:"
    Methinks Sir Brian may have meant to say "move forward..."

  • Cynical Asshole||

    Don't want to be drone striked like a middle eastern male of military age, don't be a middle eastern male of military age. /sarc

  • Cynical Asshole||

    But the legal situation for Kareem is different, the judge insisted. She noted that "two of the attacks [at or near Kareem] involved his place of work, one involved his own vehicle, one involved a work vehicle in which he had been traveling immediately before, and one hit a location from which he had just walked away."

    This sounds like the Keystone Cops Drones. Or a Road Runner and Wile E. Coyote cartoon where he's the Road Runner.

  • Shirley Knott||

    IOW, government as usual.

  • Rich||

    The government claimed ... this whole kill list thing is a "political question" outside the jurisdiction of the federal courts.

    Oh, very well. Have the FBI investigate it.

  • Eidde||

    They don't do political investigations, you nihilist hater!

  • Longtobefree||

    True, they do political whitewashes.

  • Robert||

    He should at least have the option to surrender.

  • Longtobefree||

    Nope. With Gitmo effectively closed, that one's off the table.

  • Diane Reynolds (Paul.)||

    Both believe they might be on a secret U.S. government "kill list" and sued various government officials from President Trump on down last year to find out if they are.

    If I'm not allowed to find out if I'm on a no-fly list, I suspect it'll be a pretty big hurdle for him to figure out if he's on a kill-list.

  • Diane Reynolds (Paul.)||

  • Tamfang||

    That article at least gets his surname right (Abdul Kareem, not Kareem).

  • Longtobefree||

    Practical test.
    Spend six months NOT hanging out with terrorists, and see if the attacks still occur in your vicinity.
    Just wondering, for a friend.

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  • Agammamon||

    Roger, order confirmed.

  • Rockabilly||

    I'm on the kill list. I'm armed and ready for any intruders on my property.

  • Longtobefree||

    How's the old air defense system? We're talking drones here.

  • IceTrey||

    5 misses? It seems they are trying to NOT kill him.

  • Eidde||

    Oh, shit, the drone program is run by Imperial Stormtroopers!

  • IMissLiberty||

    They both have the same birthright, since those rights "are endowed by our Creator." The Constitution prohibits the government from violating any human's birthright to due process or free speech.

  • Longtobefree||

    Well, the constitution used to do that, to a degree.
    Now, not so much.

  • BenjaminTheDonkey||

    "Should I kill myself, or have a cup of coffee?" -- Albert Camus

    Just when you thought they couldn't be any more socialist, they even wanna socialize the cost and planning of your demise.

  • The Last American Hero||

    If Camus had elected the former, he could have saved us all some wasted time.

  • Longtobefree||

    So, if you find you are on a government kill list, do you have to commit suicide to follow the law?

  • Chuck in CR||

    I think it is obvious this guy is not on a KILL list, but he should be on a kill list by the opfor.

    He's on a watch list as an intel source and his government is graciously allowing him to vanity report on violent revolutionaries so as to lead that government to its enemies. They allow him to leave the area before they kill his friends. Eventually someone will realize that death visits soon after being with kareem and they will stop meeting with him, ending his economic advantage (reporting on revolutionaries).

    As far as a chilling effect on the 1st, reporters and the press have always been an active part of propaganda wars and are pawns to be advanced as needed. In this case, both teams are using kareem but only his friends are gong to get him killed for it.

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