WASHINGTON (CN) – Convinced that a flawed algorithm marked them for death by U.S. killer drones, a pair of journalists have spent the last year fighting in Washington for unprecedented court relief.
Though the Justice Department maintains that the case presents a nonjusticiable political question — encroaching on the other two branches of government is a violation of the separation-of-powers doctrine — Ahmad Muaffaq Zaidan and Bilal Abdul Kareem note that America offers no administrative process by which people can challenge their inclusion on its kill list.
As the men await a ruling by U.S. District Judge Rosemary Collyer, who heard arguments in the case last month, experts say relief could turn on a concurring opinion from the 2017 D.C. Circuit case Jaber v. U.S.
Jaber marked the first time a U.S. court had granted a hearing to a civilian drone victim, but the court ultimately denied relief under the political-question doctrine.
“Of course, this begs the question: if judges will not check this outsized power, then who will?” U.S. Circuit Judge Janice Rogers Brown had asked in a concurring opinion.
For Marjorie Cohn, professor emerita at the Thomas Jefferson School of Law, the question is an intriguing one.
“I think that was a very significant invitation that she threw out,” Cohn said in a phone interview.
The stakes are high.
Kareem, who is a U.S. citizen, claims to have narrowly dodged five targeted strikes while reporting from Syria for On the Ground Network.
His co-plaintiff Zaidan is a bureau chief at Al Jazeera. After news reports emerged about Zaidan’s name on the U.S. kill list, Al Jazeera reassigned him from his longtime post in Islamabad, Pakistan, to its headquarters. As noted in the lawsuit, Zaidan “can leave Qatar to continue his work as a journalist only at his peril.”
Under the U.S. Constitution and international law, lethal force outside an armed conflict zone is illegal except in narrow circumstances.
Jennifer Gibson, an attorney for Zaidan and Kareem at the human rights organization Reprieve, emphasized that the men have few if any options for recourse outside the judiciary.
“They’ve kind of come to the court as a last resort, with no other clear avenue with which to try to get answers,” Gibson said in a phone interview.
Gibson noted that Zaidan and Kareem went to President Donald Trump directly before filing suit: they wrote a letter seeking confirmation of whether they were on the kill list and requesting the chance to present evidence as to their innocence, if so.
“They got no response,” said Gibson, who heads the drone and kill-list projects Reprieve.
With no answers from the executive branch, and the judiciary reluctant to intervene, Zaidan and Kareem see little point in making their case to lawmakers.
Absent specific legislation that could address their concerns, Gibson said the role of the legislative branch here is broader here in terms of authorizing the president to go to war.
“The reality is with rights, the proper forum for enforcing those rights is the courts,” Gibson said. “It’s not Congress.”
Department of Justice attorney Stephen Elliott argued at Zaidan and Kareem’s last hearing, however, that the kill list presents an exclusively executive decision that the courts should avoid.
“I would argue that there’s no per se rule that says the courts cannot dismiss even a constitutional claim on political-question grounds,” the lawyer had said.
In three cases to come before them involving targeted drone strikes abroad, federal courts in the District of Columbia have so far declined to rule on the merits of the claims.
If Collyer follows that trend, Kareem and Zaidan can appeal to the D.C. Circuit. But it’s unclear where else the journalists can turn from there.
President Gerald Ford banned assassination in 1975 through an executive order, but University of Notre Dame law professor Mary Ellen O’Connell noted that the government has successfully argued that targeted killing is not assassination.
“As long as the government loosely associates the killing with a battlefield, the courts have been giving the government a pass since 9/11,” O’Connell said in a phone interview.
Without judicial oversight, however, no effective check on the program exists, leaving details about the criteria and evidentiary standards used to place people on the kill list shrouded in secrecy.
Posing a hypothetical involving the plaintiff who is a U.S. citizen, O’Connell said courts would likely adjudicate a claim by Kareem if President Trump declared Iowa an armed-conflict zone for the purpose of killing him.
“If you conclude the courts would absolutely assess the facts of any Trump claim of a right to kill within the U.S., you see the dereliction of judicial responsibility in not making that preliminary, factual assessment of the situation in which Kareem finds himself,” She said. “Is he or is he not in an armed conflict? Is the president entitled to the high deference owed to commander in chief or not?”
O’Connell has been intimately involved in two of the three drone cases brought in the District of Columbia. In 2010 she served as an expert witness when Nasser al-Aulaqi – the father of American cleric Anwar al-Aulaqi – sued after reports surfaced that his son had been placed on the kill list.
The District Court dismissed the case on political-question grounds, and the U.S. killed Anwar and his 16-year-old son in separate drone strikes in Yemen in 2011.
But O’Connell says the court should have exercised its responsibility to determine whether Yemen was an armed-conflict zone at the time of the killing before dismissing the case.
O’Connell also submitted a friend-of-the-court brief in the 2017 Jaber case case. Ahmed Salim bin Ali Jaber filed that suit under the Torture Victim Protection Act after a 2012 U.S. drone strike killed two of his relatives.
After the D.C. Circuit shut the case down last year, Robert Loeb, former acting deputy director of the civil division appellate staff at the Department of Justice, wrote for Lawfare that the court had erred.
The law, Loeb argued, “requires federal courts to hear claims of extrajudicial killing in other countries taken under the color of foreign law.”
A March 9 piece in the The Harvard Law Review also said the court erred because it failed “to grapple with the statutory nature of the claim and avoided clarifying the legal framework governing lethal counterterrorism operations.”
In Zaidan and Kareem’s case, meanwhile, attorney Elliott declined to take a position at the last hearing on whether the U.S. is at war in Syria and employing drones there. Professor O’Connell said the government can more easily argue that Syria is a conflict zone than Yemen was when the U.S. killed Anwar al-Aulaqi there.
“The president has claimed victory over ISIS in Syria,” she said. “And the debate right now is how many troops we’re keeping there. And we’ve lost men in battle. And we’ve taken credit for killing so many people.”
With Amnesty International raising the issue of war crimes, O’Connell added that the government might not be able to keep its secrets in Zaidan and Kareem’s case.
“This is all public record,” O’Connell said.
“I think this is going to come down to how much deference the courts are going to continue to give the president with respect to this commander in chief decision to kill a U.S citizen who has a facially reasonable case to defend himself as being not who the government says he is,” O’Connell added.
O’Connell argued that the willingness of the courts to restrict presidential power during times of war ebbs and flows. When faced with national-security emergencies, courts often defer to executive power initially and then take steps to rein it in.
“My hope is that these cases have now once again run their course,” O’Connell said. “And the courts will see the absurdity of not being able to even look into a citizen’s claim that he has not done the things that he’s been judged and put on the execution list for without any due process.”
Cohn, the professor emerita at Thomas Jefferson School of Law, noted that there is stigma associated with going against the government on an issue of national security.
Post-9/11, Cohn said in a phone interview, courts “became much more hesitant to review decisions that the administration makes when it claims national security.”
“Although judges are supposed to be independent and not influenced by politics, I think they are very much aware of the so-called global war on terror, which continues unabated,” she added.
In 2013 Senator Dianne Feinstein, a Democrat from California and member of the Senate Intelligence Committee, proposed establishing a secret court to oversee the drone program akin to the Foreign Intelligence Surveillance Court, which handles requests for surveillance of foreign targets.
The proposal has since fizzled but Cohn called the idea unnecessary in any case.
“The issues raised by drones are issues of targeted killing,” she said. “Those rules can be litigated in federal courts just fine.”
While federal courts should be sensitive to national-security concerns, she said there are ways for them to handle those issues in cases involving the targeted-killing program.
Though typically used during criminal prosecutions of terrorism cases, Cohn said the process used in Classified Information Procedures Act cases could be used to protect classified national security information while allowing the court to adjudicate constitutional claims like those brought by Zaidan and Kareem.
Their attorney Tara Plochocki suggested as much during the May 1 hearing after Collyer wondered if she would have to review classified material to assess whether the government arbitrarily placed Plochocki’s clients on the kill list.
“The courts are familiar with reviewing classified information,” Plochocki had said. “There are procedures for this, it’s done repeatedly, especially in this district in the context of habeas cases.”