WASHINGTON (CN) – A federal judge sparred Tuesday with the Justice Department as its attorney insisted that U.S. citizens cannot question their apparent designation on a government kill list.
Two journalists, an American named Bilal Abdul Kareem and dual Syrian-Pakistani citizen Ahmad Muaffaq Zaidan, brought the underlying suit last year.
Though they deny having joined a U.S.-designated terror group or having planned any terror attacks, the men say that a U.S. intelligence program called Skynet arbitrarily and capriciously targeted them as threats based on their metadata without considering their profession.
Their suit alleged violations of the Administrative Procedure Act, but Justice Department attorney Stephen Elliott insisted in a 90-minute hearing Wednesday that the case must be dismissed in accordance with El-Shifa Pharmaceutical Industries Company v. United States.
U.S. District Judge Rosemary Collyer voiced doubt, however, that the American petitioner here is in a similar position to the pharmaceutical company that sought compensation after its Sudanese plant was targeted in a 1998 U.S. missile strike.
“I don’t consider that close to Kareem, a citizen saying ‘you can’t kill me without due process,'” Collyer said.
Collyer also invoked the 2012 drone strike that killed Anwar al-Awlaki, an American Muslim cleric turned propagandist for al-Qaida.
After that assassination inspired a suit from al-Awlaki’s father, U.S. District Judge John Bates dismissed the case on procedural grounds.
But Collyer noted that the two cases have an important difference: “I’m very concerned about the rights of a U.S. citizen who unlike Anwar al-Awlaki says he’s not a combatant, just a journalist doing his job,” she said.
The judge appeared swayed meanwhile by the D.C. Circuit’s ruling in Ahmed Salem Bin Ali Jaber v. United States, which Kareem and Zaidan’s attorney cited in support of their case.
Though Jaber held that the political-doctrine question barred judicial review, it left open the possibility that a court could review whether someone is properly designated for targeting.
U.S. Circuit Judge Janice Rogers Brown lamented in that case that the deference to the executive branch on national security-matters leaves so little space for the judiciary. “This begs the question: if judges will not check this outsized power, then who will?” Brown wrote, emphasizing that “our democracy is broken.”
Tara Plochocki of the firm Lewis Baach noted that her clients do not seek review of the legality of the drone program, and are only seeking narrow due-process relief afforded by the Administrative Procedure Act.
“Plaintiffs want an opportunity to be meaningfully heard,” she said.
If the designation of Kareem and Zaidan is found inappropriate, Plochocki said the matter should be remanded to the government for a do-over because intelligence analysts should have considered what Kareem and Zaidan do for a living.
When Department of Justice attorney Elliott stepped back up to the podium Collyer posed a hypothetical remedy, asking if his clients would be willing to receive additional information from Kareem, since he’s alive and well.
“I’d have to confer with my clients,” Elliott said.
Elliott asserted that the court would first have to decide that the designation process is unconstitutional, but Collyer disagreed.
As a citizen, Collyer said Kareem has a Fifth Amendment due process right to be heard.
“And he’s come to the only place he knows how to be heard,” she said.
Elliott countered that the U.S. government does not broadcast its plans to target an individual beforehand, repeating his assertion that the court would first need to find a constitutional violation, which would require a balancing of interests.
“Isn’t his interest in his life critical?” Collyer responded.
Collyer asked Elliott to keep the court apprised on whether his clients would accept additional information about Kareem.
She did not say when she would issue a ruling, but noted during the hearing that Kareem and Zaidan need not prove their claims at this stage in litigation, leaving open the possibility that she might decide the case later on the merits.
“The government has acknowledged that it maintains a ‘Kill List’ of suspected terrorists and that there is a process to determine who should be included on that list,” Plochocki said in a statement after the hearing. “The plaintiffs were incorrectly placed on the kill list. They have the right to make the case that the government got it wrong.”
The Department of Justice did not immediately return an email seeking comment.