D.C. Circuit Ducks Drone Strike Case

The D.C. Circuit today vacated and remanded the district court's decision in the case of Kareem v. Haspel, which had ruled that the state secrets privilege precluded the probable target of assassination from enjoining the government from carrying out a drone strike against him. The bad news for the plaintiff, however, is that the Circuit ordered the case to be dismissed on the alternative ground that he had failed to demonstrate standing.

As CAAFLog readers might remember,  the plaintiff in the case,  Bilal Kareem, is a U.S. journalist who has spent much of the past decade reporting from the civil war in Syria. After a number of close calls, specifically five drone strikes in which he was nearly killed, Kareem sued the federal government after he began to fear that he had been mistakenly included on the so-called "Kill List," the individuals for whom the use of lethal force is authorized abroad under the government's acknowledged but still highly classified targeted killing/assassination program. The district court dismissed on state secrets grounds and it looked as if the D.C. Circuit might finally offer some judicial review of the legal parameters governing the program. Alas, no.

In a brief decision written by Judge Karen Henderson, the Circuit unanimously held that Kareem had failed to meet the heightened Twombly-Iqbal plausibility standard for showing that he was in fact being targeted by the United States. The Circuit found it more plausible that Kareem was just in the wrong place at the wrong time, given the intensity of the Syrian Civil War. As a consequence, it found that Kareem lacked standing to press his claims, leaving the merits of the drone program, which has successfully evaded judicial review for over a decade, for another day.

Michel Paradis

LOAC Editor