In an argument that has floored many constitutional experts, a lawyer for the Department of Justice has presented a case claiming that the government has the power to kill its own citizens.
Drawing alarm at the D.C. Circuit, a lawyer for the United States argued Monday that the government has the power to kill its citizens without judicial oversight when state secrets are involved.
“Do you appreciate how extraordinary that proposition is?” U.S. Circuit Judge Patricia Millett asked Justice Department attorney Bradley Hinshelwood, paraphrasing his claim as giving the government the ability to “unilaterally decide to kill U.S. citizens.”
One of the journalists, U.S. citizen Bilal Abdul Kareem, says his interviews with al-Qaida-linked militants landed him on the U.S. kill list. Just in June and August 2016, Kareem says, the U.S. government targeted him five times, including one drone strike involving a U.S.-made Hellfire missile.
Though the United States has not confirmed whether Kareem or his co-plaintiff, Ahmad Muaffaq Zaidan, pose any such threat, it has withheld information related to their case on the basis of national security.
Arguing only on the claims brought by Kareem, the Justice Department’s Hinshelwood conceded Monday that a strike against a U.S. citizen is a serious undertaking. Where the judiciary can step in, he said, is in ensuring that the state-secrets privilege was appropriately applied.
But Kareem’s attorney, Tara Jordan Plochocki, argued the government was radically expanding sovereignty, domestically and abroad, allowed under state-secrets privilege.
“Whether that’s in a parking lot in the United States or abroad in Syria, the government has claimed — for the first time ever in this case — that it has unfettered and unreviewable discretion to kill US citizens at will,” Plochocki said.
Shrugging off Kareem’s claims as baseless speculation, the government argued the alleged airstrikes occurred at a time when Syria was wracked by civil war.
“In all of these circumstances, he’s not even the only person present, much less is there anything to suggest that he’s actually the target of any of these specific attacks,” Hinshelwood said.
The three-judge panel took seriously the defense that bombs pummeled Syria in 2016 as the conflict between the Assad regime and rebel groups roared.
U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee, said she viewed it as a “spectacular delusion of grandeur” that Kareem claims a series of U.S. missiles were aimed at him.
Expressing looser skepticism, Millett followed up saying: “Like Judge Henderson, I remember the news.” The two judges heard the case together with Chief U.S. Circuit Judge Sri Srinivasan, who like Millett is an Obama appointee.
While Plochocki did not dispute that cities like Aleppo and Idlib were subject to severe and routine bombings, she argued U.S. attacks on Syrian territory were not indiscriminate.
“These happened with eerie precisions,” the attorney argued, referring to the five alleged strikes against her client.
She later claimed the government was arguing Kareem needed to “provide the make and model of the missiles fired at him.”
“Of course, that’s not a reasonable expectation,” Plochocki said. Urging the D.C. Circuit to remand the case, she argued such evidence would come out in discovery if the state secrets privilege is lifted.
The US Gov't is literally arguing they should be allowed to kill Journalist and US Citizen Bilal Abdul Kareem because he "sought discovery on whether he had been targeted" as part of the infamous US 'Kill List' after he was targeted by 5 military strikes.https://t.co/crFvy01hL6
— Rachel Blevins (@RachBlevins) November 18, 2020
In its appellate brief, the government argued that Kareem lacked standing because he makes an unsupported assertion about being targeted in a war zone. Even if he had standing, the government argued, the state secrets privilege forecloses litigation of his claim.
DOJ lawyer Bradley Hinshelwood acknowledged during the hearing that a strike against U.S. citizen is a serious undertaking. He said the courts have a role in deciding whether the state secrets privilege is appropriately applied, according to Courthouse News Service.