Judge OKs Journalist’s Kill List Lawsuit Against Federal Agencies

WASHINGTON (CN) – A federal judge advanced a lawsuit Wednesday from an American journalist based in Syria, allowing him to pursue due process claims over his perceived inclusion on the U.S. government’s kill list.

U.S. District Judge Rosemary Collyer said the political-question doctrine bars consideration of three points but that the court has a duty to tackle Bilal Abdul Kareem’s constitutional claims.

“Due process is not merely an old and dusty procedural obligation required by Robert’s Rules,” the 30-page ruling says. “Instead, it is a living, breathing concept that protects U.S. persons from overreaching government action even, perhaps, on an occasion of war.”

Kareem brought the suit last year with Syrian-Pakistani journalist Ahmad Muaffaq Zaidan, alleging that a flawed algorithm arbitrarily marked them as targets for death by U.S. killer drones, in violation of the Administrative Procedure Act.

Both Zaidan and Kareem report from conflict zones and say their work brings them into close contact with extremist leaders. Both also deny any involvement in planning terror attacks or joining a U.S.-designated terror group.

Kareem claims he narrowly escaped five targeted strikes while reporting on anti-Assad rebels in Syria. Zaidan, a bureau chief at Al Jazeera, says the U.S. arbitrarily designated him as a courier for al-Qaida and placed him on a terror watch list based on an analysis of his metadata by a program called Skynet.

During a May 1 hearing, the government argued that Zaidan had failed to allege a link between the Skynet program and the kill list, and Collyer agreed, even while noting that she must assume the accuracy of the facts alleged at the motion-to-dismiss stage.

“These facts, however, are not sufficient to allege plausibly that his name is on a U.S. Kill List; that conclusion is mere speculation presented as a fact,” the ruling says.

Collyer said no facts alleged in the complaint raised the possibility of a connection between the kill list and Skynet beyond speculation.

But Collyer found that Kareem had plausibly alleged that his multiple near-misses could be attributed to his designation on the kill list, and that he has a “uniquely compelling” interest in preserving his life.

“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to persuade his government that he is not a terrorist or a threat so that the alleged authorization to kill is rescinded,” the ruling says. “This legal approach to resolving the issue has previously been recommended by this District Court and sustained on appeal.”

Kareem’s attorney, Tara Plochocki with Lewis Baach, applauded the result.

“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,” Plochocki said in an email. “While we are disappointed that the court did not grant Mr. Zaidan the same opportunity, allowing Mr. Kareem’s claims to proceed is a significant victory for constitutional protections and due process in the face of government claims of national security.”

The Department of Justice did not immediately respond to an email seeking comment on the ruling.

The government had said Kareem and Zaidan’s suit must be dismissed under D.C. Circuit precedent in El-Shifa Pharmaceutical Industries Company v. United States, whereby a pharmaceutical company sought compensation after a 1998 U.S. missile strike destroyed its Sudanese plant.

The D.C. Circuit cited the political-question doctrine in that appeal, but Collyer says Kareem’s case differs because the El-Shifa plaintiffs had no cognizable constitutional rights.

Kareem also has not asked the court to determine the legality of the U.S. drone strikes. Instead he wants the opportunity to present evidence to government officials that would show he’s a journalist, not a terrorist.

“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 ruling says.

Zaidan and Kareem had also asked the court to review the process used to nominate individuals to the kill list under the Presidential Policy Guidance, but Collyer said that matter is a political question the court cannot adjudicate.

On the same grounds, Collyer  also declined to examine the legal authority used to allegedly place the journalists on the kill list.

In addition to dismissing Zaidan as a plaintiff, Collyer dismissed President Donald Trump as a defendant since the case was brought under the Administrative Procedure Act, which applies only to federal agencies.

The remaining defendants in the case are CIA Director Mike Pompeo, Defense Secretary James Mattis, Secretary of Homeland Security John Kelly, Attorney General Jeff Sessions, Director of National Intelligence Dan Coats and National Security Adviser Raymond McMaster, along with their respective agencies.

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