"The US government refuses to take my American client off a Kill List" by Eric Lewis
October 04, 2019
Does the US Constitution
allow President Donald Trump to order the assassination of innocent Americans
in total secrecy? Such a question seems absurd; unfortunately, a US District
judge has just answered in the affirmative.
Bilal Kareem is a US
citizen of Syrian origin, who was living in Brooklyn and working as a stand-up
comedian. Frustrated by the news coverage of the conflict in Syria and especially the failure of journalists
to interview and try to understand the experience of the people actually
involved in the conflict, Kareem moved to Aleppo and established the YouTube
channel On the Ground News TV, which provided content to news outlets around
the world.
Suddenly, drones started
firing missiles at him. In the summer of 2016, he was nearly killed by Hellfire
missiles fired by Predator drones five times.
Nobody but the US had
weaponized drones in the region at the time. Based on publicly available
information about how the US uses cellphone data to identify targets, it seemed
likely that the US government had concluded, probably based upon its
algorithms, that because Bilal Kareem was spending time interviewing rebels, he
was a rebel himself. The result of using software to determine who to kill
resulted in the US targeting one of its own, who was actually engaging in a
deeply important First Amendment activity.
In 2017, Reprieve and my
law firm filed a suit on behalf of Kareem and another Syria-based journalist in
Washington DC, arguing that they had a due process right not to be placed on a Kill List and targeted for execution without
being able to challenge the basis for that decision.
“He seeks his
birthright,” wrote Judge Rosemary Collyer, a George W Bush appointee, “…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.”
This was a landmark
ruling, and to most readers it would seem like common sense. However, the
government then sought to dismiss it on the grounds that the government would
have to reveal “state secrets” in telling Kareem whether or not he had been
targeted and why.
This was a case in which
the state secrets privilege would be tested against a US citizen’s right not to
be killed by his government without some form of due process, and perhaps an
opportunity to suggest why killing him was a mistake. The motion was
accompanied by affidavits, largely classified, from the Director of National
Intelligence and the Acting Secretary of Defense.
We argued that the
government’s claim to be able to inflict death by drone strike made Bilal
Kareem akin to a criminal defendant in a capital case, albeit facing execution
without trial. In cases where the government relies on state secrets to
prosecute a crime, and refuses to disclose them, the government must dismiss
the case. Here, the government could simply have stated that whether or not
Kareem had ever been on the Kill List, or could promise to take no efforts to
try to kill him. But the government was unwilling to do that. It sought to
prevent any from any judicial oversight of its decision.
The court found that the
state secrets privilege was absolute; that the government had shown there was a
national security concern that protected it from providing any information,
even in a classified setting; and so any legal objection to Bilal Kareem’s
assassination would be summarily dismissed.
No doubt there are
secrets that a government needs to protect. But as recent events have shown,
the government’s penchant for secrecy is reflexive and its claims are
categorical.
As someone who has had
Top Secret clearances, I have found it remarkable how easy it is to classify
the most banal or embarrassing material. Edward Snowden faces the rest of his
life in his prison for publishing secrets, most of which might better be
debated in the public domain — after all, his revelations prompted German
Chancellor Angela Merkel to compare the CIA to the Stasi for spying on their
friends.
In the last week, we
have seen reports of the classification of inculpatory telephone transcripts
under the highest level of security, not to protect national security but to
prevent a president’s corruption from seeing the light of day. The judiciary
has a critical role to play in scrutinizing claims of secrecy, especially when
it is invoked to prevent core First Amendment activity and someone’s life is at
stake.
Some of us may be
horrified that the US engages in assassination — execution without trial — at
all. Regardless, surely when someone who claims to be innocent has compelling
reason to think he is being targeted, the least we can expect in a democracy is
a modicum of due process?
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