American Citizens Cannot Challenge Their Inclusion on Government Kill List: Kareem v. Haspel, US District Court for the District of Columbia, September 24, 2019

A federal district court in the District of Columbia has dismissed a US citizen’s lawsuit challenging his inclusion on America’s Kill List, holding that the government’s invocation of the state secrets privilege is absolute and overrides his due process rights…

Did you know that America has a “Kill List,” also called the “Disposition Matrix?”

The US government maintains a list of targets believed to be terrorists who we target on a regular basis with military equipment such as drones shooting Hellfire missiles – it’s the source of the many reports of murdered civilians in countries like Afghanistan or Syria, people who are killed en masse when the missiles miss or when the missiles strike their targets without regard to innocent bystanders nearby.

Did you know that American citizens have been placed on the government’s Kill List? And, unless an appellate court overturns the district court’s opinion in Kareem v. Haspel, there is no way for you to 1) find out if you are on the Kill List, 2) challenge the evidence (or lack of evidence) that put you on the list, or 3) get off the list?

The district court dismissed Kareem’s lawsuit, holding that the state secrets privilege is absolute and that the mere invocation of the privilege is enough to prevent Kareem from knowing why his own government is trying to kill him…

What is the Kill List?

The Kill List, also called the Disposition Matrix, may have begun during President Obama’s administration:

Seemingly conceived in the Obama years, the lethal list – about which little is known outside a few leaks and court pleadings – appears to sort people into targeting for capture, interrogation, or assassination by drone. It was run by a star-chamber of two-dozen security officials and the president. According to a 2012 New York Times report, they met once a week to decide which targets around the world lived or died.

These meetings became known as “Terror Tuesdays.”

Drone attacks under Obama increased by ten times the number of drone attacks under Bush, and President Trump has increased the drone attacks by four or five times as many as there were under the Obama administration.

How do they decide who goes on the Kill List?

Death by Meta-Data

“In 2014, former CIA and NSA director Michael Hayden said in a public debate, ‘We kill people based on metadata.’”

What does that mean?

“Signature strikes” can be ordered based on “too many derogatory checks” appearing on a person’s profile:

According to multiple reports and leaks, death-by-metadata could be triggered, without even knowing the target’s name, if too many derogatory checks appear on their profile. “Armed military aged males” exhibiting suspicious behavior in the wrong place can become targets, as can someone “seen to be giving out orders.” Such mathematics-based assassinations have come to be known as “signature strikes.”

Kareem, whose story is detailed in the Rolling Stones article linked to above, is an American journalist who was covering the war in Syria – he was also spending time with people designated as terrorists by the US military and who have since been assassinated in drone strikes.

After a series of near-death experiences involving Hellfire missiles fired from drones, some of which appeared to be targeting him directly, he was tipped off that he is on the United States’ Kill List.

Does the US government have information that he has committed terrorist acts or is planning terrorist acts? Was he targeted for his controversial reporting on the ground in countries like Syria? Or was he targeted solely by AI that determined his cell phone was too close to terrorists’ cell phones too many times?

We don’t know. Kareem doesn’t know. And now a US district court has determined that the government need only invoke the state secrets privilege to proceed with killing an American citizen.

The State Secrets Privilege

The Court found that the government only needs to invoke the state secrets privilege to shut down his case. Once that happens, we must trust the government to be careful, restrained, and have our best interests in mind. There is no secret court that has reviewed the reasons Kareem was placed on the Kill List.

There is no judge with a top-secret security clearance that allows the court to review the allegations and determine whether Kareem was targeted because he was involved in terrorist activity or if he was targeted because military officials or the executive did not like his style of journalism or his message. According to the Court:

“When properly invoked, the state secrets privilege is absolute. No competing public or private interest can be advanced to compel disclosure of information found to be protected by a claim of privilege.” Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).

After pointing out that the state secret privilege has never been invoked in a case where a litigant is literally begging for his life, or at least for the government to tell him why they want to kill him, the court relied on prior cases that have held that courts must blindly accept the government’s assertion of the state secrets privilege where plaintiffs were suing the government for monetary damages or to stop government surveillance.

Mr. Kareem’s first objection focuses on the significance of the right at issue—his right to due process, i.e., evidence and argument before the United States can take his life. But the state secrets privilege is absolute.

If the government chooses to assassinate a US citizen, that US citizen has no recourse because the state secrets privilege is absolute.

That adjective, absolute, as a modifier to any noun that describes government, should be terrifying to any person who has studied history and who does not want to be subject to the whims of an authoritarian government.

The Two Americas

Every American needs to know that there are now “two Americas.” There is the happy democracy we all believe we live in, where the Bill of Rights protects us against an overreaching government and we can sleep at night knowing that our government is, well, our government. Then there is the new, authoritarian America, where we don’t get to question what our government is doing, even when it involves killing its own citizens:

One is a democracy, visible to the population and governed by the lofty laws and rules and constitutional principles we learned about in Schoolhouse Rock.

The second nation is an authoritarian state-within-a-state, governed exclusively by the executive branch. In this parallel world, all rights redound to a bureaucracy that may kill anyone it pleases at any time, restrained only by the inclinations of the executive.

How important is Kareem v. Haspel? It is a landmark in our nation’s slide into authoritarianism. This may be the case that future generations look back on to say – this is when it began…

It’s not a stretch to say that it’s one of the most important lawsuits to ever cross the desk of a federal judge. The core of the Bill of Rights is in play, and a wrong result could formalize a slide into authoritarianism that began long ago, but accelerated after 9/11.

The above quote was written in July 2019, before the district court issued its order dismissing Kareem’s case. We have now reached the wrong result, and it has formalized our nation’s slide into authoritarianism more than any other court opinion in this nation’s history.

The judicial branch of the United States has now granted to the executive “the ultimate in dictatorial powers: the right to kill even its own citizens without having to explain itself.”

Federal Appellate Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.