Last week, the government filed its brief in opposition in the case of Kareem v. Haspel, which is now pending in the D.C. Circuit Court of Appeals. The appellant, 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 developed a credible 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.
tk_2_opinion.pdfIn 2017, Kareem filed suit for declaratory and injunctive relief in the D.C. District Court, asserting a variety of claims, principally under the Due Process Clause, seeking to discover whether he was, in fact, on the Kill List and, if so, whether he could be removed. The District Court dismissed Kareem's suit last year on state secrets grounds, finding that "the facts necessary for Mr. Kareem to establish his prima facie case," to wit, whether he is on the Kill List, "are classified and without disclosure of those facts the case cannot proceed."
Kareem filed his merits brief on appeal earlier this year, arguing that "Mr. Kareem is entitled to know whether his government plans to kill him and, if so, the basis for that decision." The government, for its part, defended the district court's decision on the ground that the state secrets privilege is effectively an absolute bar to litigation in civil cases, such as Kareem's. The government also argued alternative grounds to affirm, including the political question doctrine, a ground on which it had prevailed in Judge Bates' controversial 2010 decision in Al-Aulaqui v. Obama (after Anwar Al-Aulaqui was, in fact, killed in a drone strike, his father brought a suit that was dismissed in 2014 under the Bivens "special factors" doctrine).
Kareem's reply brief is due next month and oral argument is likely to be scheduled for this fall. How the D.C. Circuit will rule is ultimately anyone's guess. Neither of the Al-Aulaqui cases were taken up on appeal and, as extraordinary as it seems, this will be the Circuit's first real opportunity to decide whether the courts have any role in evaluating the legality of the drone program, despite its defining place in U.S. counter-terrorism policy for the past decade.
In the government's favor, it is certainly true that the state secrets privilege has traditionally enjoyed a broad and preclusive application in civil cases. But the government should not be too confident. The rationale justifying a broad state secrets privilege in civil cases has turned on the balance of the public interests against the need for a judicial forum in which to vindicate private rights. The significant public interests that the protection of state secrets implicate, in short, outweigh whatever private rights to monetary relief, for example, a plaintiff might assert in a lawsuit.
Kareem, though, is not seeking to vindicate the ordinary private rights at issue in run-of-the-mill civil litigation. He is not hoping to win money damages. He is hoping to keep himself alive. The unique significance of that interest is one of the main reasons that the state secrets privilege does not apply in criminal cases, where the defendant's rights to life and liberty are squarely implicated, beyond what is authorized under the Classified Information Procedures Act. It is also why the state secrets privilege has had a more limited application in habeas corpus proceedings, which are technically civil actions.
That said, the federal courts have proven themselves consistently eager to avoid hard legal questions in national security cases. They have relied on a variety of doctrines - such as the state secrets privilege, political question, and Bivens special factors - that are couched in terms of justiciability and the separation of powers, but which cumulatively have allowed more and more of the Executive Branch's national security policies to operate in a state of extra-legal limbo, subject only to the politically malleable legal judgments provided by departmental general counsel and the Office of Legal Counsel. Will the Circuit buck this trend and assert a role for the judiciary, when the government seeks to assassinate U.S. citizens abroad? Stay tuned...