Of course, the premeditated, extrajudicial killing of U.S. citizens is contrary to the text of the Constitution, which declares in its Fifth Amendment, “No person shall be … deprived of life, liberty, or property, without due process of law.”
The American Who Says He’s Been the Target of Five Air Strikes
A federal judge is allowing his suit to proceed, finding that his “interest in avoiding the erroneous deprivation of his life is uniquely compelling.”
He was born Darrell Lamont Phelps. He grew up in Mount Vernon, New York, moved down to the city, tried his hand at comedy, and later converted to Islam, adopting the name of Bilal Abdul Kareem. Now 46 years old, he lives in the Middle East, where he has a wife, five children, and a controversial freelance-journalism career focused on Islamist fighters in the Syrian civil war.
In his estimation, the United States government has tried to kill him five times. Last week, he won the ability to proceed with a lawsuit that could save his life. It may also constrain the president’s ability to order other Americans killed.
Nowhere have the claims of post-9/11 presidents been more radical than in the realm of extrajudicial killing. In the telling of their lawyers, the president, in his capacity as commander in chief during war, can keep a classified kill list, add names as he sees fit, then secretly kill those individuals far from any battlefield. Meanwhile, the U.S. is fighting a war bound by neither time nor geography. The most basic human right—the right to life—is weakened accordingly.
Yet the Obama administration killed several United States citizens in overseas drone strikes, including Anwar al-Awlaki, who was designated a lawful target by executive-branch lawyers. They declared him to be impossible to capture and engaged “in continual planning and direction of attacks” against Americans. And courts stymied efforts to challenge his death warrant and his death.
U.S. District Court Judge John Bates ruled in 2010 that the target’s father lacked legal standing to bring a suit, adding that “there are no judicially manageable standards by which courts can endeavor to assess the President’s interpretation of military intelligence and his resulting decision—based on that intelligence—whether to use military force against a terrorist target overseas … Nor are there judicially manageable standards by which courts may determine the nature and magnitude of the national security threat posed by a particular individual.”
As Jameel Jaffer of the ACLU warned at the time, “It’s worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president.”
The U.S. government succeeded in killing al-Awlaki the following year as he ate breakfast in Yemen. Another lawsuit was then filed to challenge the killing’s legality.
In a 41-page opinion, federal Judge Rosemary M. Collyer “ruled that courts should hesitate before deciding to hold a government official personally responsible for violating a citizen’s constitutional rights in the context of a wartime action,” Charlie Savage reported in The New York Times, adding that the ruling suggested U.S. federal courts have “no role to play, before or after, in reviewing the legality of government decisions to kill citizens whom officials deem to be terrorists in overseas wartime operations, even away from ‘hot’ battlefields.”
Civil libertarians kept objecting.
The Constitution affords extraordinary protection to citizens accused of treason, requiring two witnesses to the same overt act to secure a conviction. Yet courts were allowing presidents of the United States to kill citizens in secret without due process far from any battlefield merely by dubbing them terrorists?
Kareem’s case is a bit different. The U.S. government has neither publicly asserted that he is a terrorist nor acknowledged if he is, in fact, on a kill list. Rather, Kareem assumes that the government is trying to kill him because he was nearly killed on five different occasions. Collyer, once again presiding over a high-profile targeted killing case, summarized the facts as he presented them:
In June 2016, Mr. Kareem was at the location of four different aerial attacks. The first and fourth incidents involved strikes to the OGN office in Idlib City when Mr. Kareem was inside the office. The second attack occurred in the town of Hariyataan while Mr. Kareem was there conducting an interview. The strike hit the exact location where Mr. Kareem was setting up for the interview, but at the time of the strike he had climbed a nearby hill to “view destroyed homes a street away.”
The third attack occurred when the vehicle in which Mr. Kareem and his staff were traveling was “struck and destroyed by a drone-launched Hellfire missile.” At the time of the strike, Mr. Kareem was sitting in a different, nearby vehicle which was “hurled into the air by the force of the blast” and “flipped upside down.” In August 2016, Mr. Kareem was again the victim of an attack when he was at the Kulliyatul Midfa‘iyyah (Artillery College) to film. He and his coworkers were in his car “when there was a huge blast only yards away from the car.” The occupants survived, but all were hit by shrapnel from the blast.
As a result of these five near-miss experiences in a three-month period, Mr. Kareem alleges upon information and belief that he was the target and that his name is included on the United States Kill List.
Kareem believes that because of the people with whom he was in contact while reporting on the Syrian civil war, the United States erroneously concluded that he is a terrorist. In essence, he sued in hopes of going to court, clearing his name, and getting an injunction to stop his own extrajudicial killing.
The U.S. government countered that he should not get his day in court—that a U.S. citizen who narrowly escapes repeated attempts on his life, who reasonably concludes his government was behind those attempts, and who asserts he is being hunted based on a terrible mistake has no recourse in the judicial system.
While moving to dismiss, the Trump administration argued that the plaintiff lacks standing, that the case raises nonjusticiable “political questions,” and that he has not “pled sufficient facts to establish that the alleged unlawful actions have even occurred.” They pointed out that he was reporting in a very dangerous place. Maybe he just happened to have a lot of brushes with death. Maybe a party to the conflict other than the U.S. was trying to kill him. Who could say for sure?
Of course, they could say.
If the U.S. government were less secretive, or believed it had an affirmative duty to inform an American while putting him on a list of people to be executed rather than keeping such a matter secret, there would be no need for speculation.
Ultimately, the judge ruled that Kareem met the standard required to bring his case and adjudicate it on the merits rather than having it dismissed like prior cases. “Mr. Kareem does not seek a ruling that a strike by the U.S. military was mistaken or improper,” the ruling states. “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.”
Noting that “two of the attacks 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 judge ruled, “while it is plausible that Mr. Kareem is not being targeted by the U.S., 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. Probability is not the standard on a motion to dismiss.”
She reasoned that Kareem “is not in U.S. custody and, if targeted because he is on the Kill List, may well have been identified by means other than his name, profession, place of birth, and the like. Now that he has made it to a U.S. court, however, his constitutional rights as a citizen must be recognized.” And she concluded, “this case is brought by a U.S. citizen who seeks to interpose accurate personal information concerning his profession and activities into specific targeting decisions. These are weighty matters of law and fact but constitutional questions are the bread and butter of the federal judiciary.”
Kareem hasn’t yet argued his case on the merits. He is represented by, among others, the Lewis Baach Kaufmann Middlemiss attorney Tara J. Plochocki, with whom I went to high school. As his lawyers put it in response to the latest ruling, “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 … 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.”
I haven’t yet mentioned another plaintiff in the case. Ahmad Muaffaq Zaidan has worked for Al Jazeera for more than two decades. “In 2015, Mr. Zaidan traveled in Syria reporting on battles of the Free Syrian Army; as a result, he says that he was listed on Syrian State Television as a member of Al-Qaeda,” Collyer wrote. “Mr. Zaidan alleges on information and belief that his actions as a journalist caused him to be listed in a U.S. intelligence document called SKYNET, which identified potential terrorists based on their metadata (electronic patterns of communications, writings, social media postings, and travel). He believes that because he was identified by SKYNET as a potential terrorist, he has also been included on the Kill List, allowing him to be targeted and killed.” The Intercept first reported his story.
In court, he sought to challenge what he believes to be a secret death warrant. But Collyer ruled that the Syrian and Pakistani citizen lacks standing. “The Court assumes the accuracy of Mr. Zaidan’s allegations that he is a journalist who regularly meets with individuals tied to terrorists, that he has interviewed terrorist leaders, and that he found his name on a SKYNET list of potential terrorists,” she writes. “These facts, however, are not sufficient to allege plausibly that his name is on a U.S. Kill List; that conclusion is mere speculation … While he would not need to plead with certainty or have actual proof that his name is on a Kill List, his current allegations would require the Court to find that it is plausible that every individual whose name is on the SKYNET list of potential terrorists is also on a Kill List, for which there is no evidence.”
He’ll just have to remain in terror of being killed by the United States.