How Do You Get Off the US "Kill List"?
Tuesday, May 29, 2018
By Marjorie Cohn, Truthout | News Analysis
Targeted by air strike
(Image: JR / TO; Adapted: WindVector, WeAre / Shutterstock)
After the 9/11 attacks, the Bush administration created a secret "kill list"
to step up the targeting of alleged terrorists for assassination. The
criteria for inclusion on the list have apparently morphed over three
presidential administrations, yet they remain elusive.
Last year, two journalists filed a federal lawsuit against Donald Trump and
other high government officials, asking to be removed from the kill list
until they have a meaningful opportunity to challenge their inclusion. Both
men claim to have no association with al-Qaeda or the Taliban, to have no
connection to the 9/11 attacks, and to pose no threat to the United States,
its citizens, residents or national security.
Kareem and Zaidan Try to Get Off Kill List
Bilal Abdul Kareem, a US citizen and freelance journalist, has survived five
attempts on his life from targeted air-strikes. A Turkish intelligence
official told Kareem that the US government is trying to kill him.
Ahmad Muaffaq Zaidan, a citizen of Syria and Pakistan, is a senior
journalist with Al Jazeera. He interviewed Osama bin Laden twice before the
9/11 attacks. Zaidan learned about his inclusion on the kill list from
National Security Agency (NSA) documents leaked by Edward Snowden and
published by The Intercept.
To read more stories like this, visit Human Rights and Global Wrongs.
The NSA zeroed in on Zaidan as a result of a program called SKYNET. Ars
Technica revealed that SKYNET -- which uses an algorithm to gather metadata
in order to identify and target terrorist suspects in Afghanistan, Pakistan
and Somalia -- would result in 99,000 false positives.
In their complaint filed in March 2017, Zaidan and Kareem alleged they were
included on the kill list as a result of algorithms used by the United
States to identify terrorists.
At a May 1 hearing in the case, Judge Rosemary Collyer of the US District
Court for the District of Columbia questioned the US government's assertion
of authority to unilaterally kill US citizens abroad. Collyer repeatedly
challenged government lawyers to explain why national security
considerations outweigh a US citizen's inclusion on the kill list with no
right to notice and an opportunity to respond.
"Are you saying a US citizen in a war zone has no constitutional rights?"
Collyer asked Stephen Elliott, a Justice Department attorney. "If a US
person is intentionally struck by a drone from the US, does that person have
no constitutional rights to due process ... no notice, anything?"
Anwar al-Aulaqi Placed on Kill List in 2010, Killed in 2011
Collyer is the same judge who, in 2014, dismissed a lawsuit filed by the
families of Anwar al-Aulaqi, his son Abdulrahman al-Aulaqi and Samir Khan --
all US citizens who were killed in 2011 US drone strikes. Their families
were seeking to hold officials in the Obama administration personally liable
for their roles in the strikes.
Nasser al-Aulaqi was the father of Anwar al-Aulaqi, who was placed on the
kill list maintained by the CIA and the military's Joint Special Operations
Command in 2010. Later that year, Nasser filed a lawsuit challenging the
authorization for Anwar's killing before he was killed in a US drone strike
in Yemen in 2011. Nasser's lawsuit sought clarification of the scope of the
global battlefield, targeting standards and lack of transparency.
US District Judge John Bates, also of the District of Columbia, dismissed
Nasser's suit, ruling that he lacked standing to challenge the violation of
Anwar's constitutional rights because Nasser's constitutional rights were
not violated by the government's "alleged targeting of [Nasser's] son" and
the alleged targeting was "not designed to interfere with the father-adult
son relationship." Bates concluded, "[Nasser] cannot show that a parent
suffers an injury in fact if his adult child is threatened with a future
extrajudicial killing."
Bates also held that the political question doctrine, based on separation of
powers, prevented the judicial branch from reviewing military and foreign
affairs decisions made by the executive and legislative branches.
"At its core, the suit sought to exercise a still much-needed check on a
dangerous claim of executive power," Center for Constitutional Rights
attorney Pardiss Kebriaei, who filed the 2010 lawsuit on behalf of Nasser,
wrote in my collection, Drones and Targeted Killing: Legal, Moral, and
Geopolitical Issues.
Like Kareem and Zaidan, Nasser claimed his son had a Fifth Amendment due
process right to notice and an opportunity to be heard before being deprived
of life, liberty or property.
In the 2014 al-Aulaqi/Khan lawsuit, Collyer considered the plaintiffs' due
process claims, but concluded the families had no remedy for their losses.
Collyer noted that the US government had relied on the 2001 Authorization
for Use of Military Force and she found compelling considerations of
national security, separation of powers and the risk of interfering with
military decisions. Collyer wrote that reviewing those decisions would
impermissibly insert the courts into "the heart of executive and military
planning and deliberation."
But on May 1, Collyer distinguished Kareem and Zaidan from al-Aulaqi.
Collyer said al-Aulaqi's case "was more clear to me because he was a
terrorist and claimed to be one," but, "I'm very concerned about the rights
of a US citizen who ... asserts that he is not a combatant, that he has not
taken sides. He is just a journalist doing his job."
Inclusion of US Citizens on No-Fly List Also Violates Due Process
In 2014, Judge Anna Brown of the US District Court for the District of
Oregon held in Latif v. Holder that plaintiffs' inclusion on the US "no-fly
list" violated their right to due process because it lacked "any meaningful
procedures" for them to challenge their placement on the list. As those on
the kill list, people on the no-fly list were given no notice or chance to
contest the evidence used by the government to watchlist them.
Brown ordered defendants (former Attorney General Eric Holder, FBI Director
James Comey and FBI Terrorist Screening Center Director Christopher Piehota)
to "fashion new procedures that provide Plaintiffs with the requisite due
process ... without jeopardizing national security."
But Brown limited her ruling to international, not domestic, travel. The
government did not appeal Brown's ruling, although there has been further
litigation about what process is, in fact, due.
Attorney Steven Goldberg represented the plaintiff in Tarhuni v. Holder, a
companion case to Latif. Goldberg told Truthout that when they asked why the
government put Tarhuni on the no-fly list, they were informed it was
classified. "National security is always their defense," Goldberg said.
"The government uses the political question doctrine to avoid litigating
these issues. But the cases implicate constitutional rights," he added.
Goldberg noted that while courts need to be mindful of national security
concerns, there are means to address them while permitting litigation of
constitutional claims. They are contained in the Classified Information
Procedures Act and lawyers can get security clearances with protective
orders limiting disclosure.
Regarding placement on the kill list, however, one surefire way to get off
is to wait until they kill you. Short of that, litigation and lobbying
members of Congress remain less draconian alternatives.
Copyright, Truthout. May not be reprinted without permission.
Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former
president of the National Lawyers Guild, deputy secretary general of the
International Association of Democratic Lawyers and an advisory board member
of Veterans for Peace. An updated edition of her book, Drones and Targeted
Killing: Legal, Moral, and Geopolitical Issues, was recently published.
Visit her website: http://marjoriecohn.com.
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