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Should courts review the decision-making process when the U.S. government determines to target an American citizen as part of the armed conflict authorized by the 2001 Authorization for Use of Military Force? Courts have refused to allow such cases in the past. On June 13, however, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia gave an emphatic yes to the question, in a ruling that deserves much more attention than it has received thus far.
Here's what you need to know:
Who are the plaintiffs?
There are two plaintiffs.
First: Ahmad Muaffaq Zaidan. Zaidan is a dual citizen of Syria and Pakistan and a journalist with al-Jazeera.
Second: Bilal Abdul Kareem. Kareem is an American citizen from New York. He’s an independent journalist who has become prominent and controversial for his reporting from Syria, where he now lives. As the New York Times explains, the controversy stems from his support for the idea that the struggle against the Assad regime is and should be a jihad and from the allegation that he is not just interested in the views of jihadis but is acting as a propagandist for them.
What factual claims are they making?
Zaidan and Kareem allege that they have been placed on the U.S. government's kill-capture list (that is, the pre-approved list of individuals the U.S. government believes are within the scope of the armed conflict authorized by the 2001 AUMF and thus can and should be killed or captured if and when possible).
Zaidan’s belief that he is on the kill-capture list is based on documents in the Snowden leaks, which led to media reports in 2015 suggesting that Zaidan was on a U.S. terrorist “watchlist” and had been identified, through a metadata link-analysis program, as being associated with al-Qaeda. From there, Zaidan extrapolates that he also is on the kill-capture list.
Kareem’s belief is based on five alleged incidents in Syria in which he nearly has been killed by airstrikes. From there, Kareem extrapolates that he is on the kill-capture list.
What legal claims do they make?
Before digging in to their claims, a word is in order regarding the complexities raised by this situation in contrast to a military-detention case.
One might think both would unfold in similar fashion. With John Doe (a U.S. citizen who has been in U.S. military custody in Iraq since September 2017), the procedural path forward is well settled: As a citizen, he plainly had the right to seek judicial review of the legality of his detention through a writ of habeas corpus. The same is true for noncitizens held in U.S. military detention at Guantanamo (but not necessarily for noncitizens held in military detention elsewhere, as illustrated by the al-Maqaleh litigation, which attempted unsuccessfully to extend the Boumediene ruling to Bagram Air Base). Where applicable, then, habeas provides whatever procedural vehicle is needed for detainees to invoke constitutional, statutory or other bases for challenging the legality of their detention.
For better or worse, there is no precise parallel to habeas corpus for situations in which the government is attempting to kill a person rather than depriving him of his liberty. As a result, those who seek judicial review of decisions to kill face an obstacle that military detainees do not: They have to identify a procedural basis for getting into court in the first place.
This came up before, twice, in relation to the U.S. government’s effort to kill Anwar al-Awlaki of al-Qaeda in the Arabian Peninsula.
First, before al-Awlaki was killed, his father attempted to sue for various forms of injunctive relief. The case went before Judge John Bates, who granted the government’s motion to dismiss it. Much of that opinion focused on explaining that the father lacked standing to raise claims on his son’s behalf, but part of the opinion touches on other matters. Most notably, Judge Bates wrote that suits against government officials in their official capacity amounted to suits against the United States and thus implicated the federal government’s sovereign immunity from suit. To overcome that immunity, the father would have to point to a statute waiving it. He had pointed to the Administrative Procedure Act (APA), which does indeed waive immunity in connection with non-monetary claims challenging “agency” actions. The government responded that (1) the APA waiver does not apply where the challenged action is "committed to agency discretion by law" and that (2) courts in any event have equitable discretion not to allow claims for injunctive or declaratory relief and that it is especially appropriate to rely on that discretion to preclude suit where the claims touch on sensitive matters of foreign policy. After noting that the “committed to agency discretion” exception might well apply here, Judge Bates then relied on the equitable-discretion point. Finally, Judge Bates concluded that the claims presented in any event were all precluded by the political-question doctrine.
After al-Awlaki was killed, his father sued again, this time seeking monetary damages under Bivens based on various alleged violations of al-Awlaki’s constitutional rights. This time the case went before Collyer (the same judge who now has Zaidan and Kareem’s suit). She dismissed it, reasoning that a Bivens action should not be available in that circumstance. Before reaching that holding, however, she did conclude—contrary to Judge Bates in the first suit—that this suit was indeed justiciable despite political-question objections (she emphasized that the right to life of an American citizen was in issue). Collyer noted that her ruling on the political-question issues was in conflict with that of Judge Bates, noting by way of distinction just that the issue was still more acute at this stage in the case since the government had now killed the citizen in question.
This brings us to Zaidan and Kareem. Their suit seeks non-monetary relief only, so it does not raise the Bivens question. Instead, they reopen the question of whether the APA’s waiver of sovereign immunity can be used to enable various constitutional, statutory and other claims to move forward, notwithstanding the view that Judge Bates expressed in the first al-Awlaki decision. At bottom, they argue that there is “agency action” in the form of their designations to the kill-capture list and that this action (along with the failure to allow them to rebut it) violates the APA because it is arbitrary and because it violates other sources of law, including:
- The Fifth Amendment Due Process Clause
- The First Amendment and freedom of speech
- The Fourth Amendment and protection from unreasonable seizure
- The War Crimes Act (18 U.S.C. 2441), insofar as it incorporates Common Article 3 of the Geneva Conventions
- 18 U.S.C. § 956(a) (prohibiting conspiracies to kill outside the United States)
- Article 6 of the International Covenant on Civil and Political Rights (the ICCPR’s ban on arbitrary deprivation of life)
- Executive Order 12333’s ban on “assassination”
- The 2001 AUMF
On what grounds did the government move to dismiss?
The government moved to dismiss on several grounds.
First, it notes that the suit names the president, but the president is not an “agency” for APA purposes. That’s an easy one, and Collyer’s opinion opens by dropping President Trump as a defendant.
Second, it argues that neither Zaidan nor Kareem have standing (due to the speculative nature of their allegations about being on the kill-capture list).
Third, it argues that their claims in any event fail for a variety of reasons, including but not limited to the political-question doctrine.
How did Collyer resolve the argument that Zaidan and Kareem’s claims are too speculative to give them standing?
She agreed with the government as to Zaidan but not as to Kareem.
As to Zaidan, she concluded that it was just too much of a leap to assume that he was on a kill-capture list solely based on media reports alleging that he was on the (much, much, much larger) terrorism watchlist and that link-analysis had tied him to al-Qaeda. Note that the government had sought to preclude the court from allowing Zaidan to support his claim with reference to classified material leaked by Edward Snowden, which certainly would have caused his complaint to fail. Collyer disagreed and allowed Zaidan to rely on that material in making his allegations; she just did not think it was enough to make the key allegation (inclusion on the kill-capture list) more than speculation.
As to Kareem, the question boiled down to the reasonableness of inferring that he is on a kill-capture list based on five near-miss airstrikes, at least one of which employed a Hellfire missile of the type used by the United States. Collyer found this to be close enough.
On to the legal merits then. Does the APA’s exception for “military authority exercised in the field in time of war or in occupied territory” apply?
The government argued that the APA does not apply in this case because its definition of “agency” excludes “military authority exercised in the field in time of war or in occupied territory” (5 U.S.C. § 701(b)(1)(G)). Collyer responded that this argument might work eventually but that so far the government has failed to show that the decision to place Kareem on a kill-capture list actually took place “in the field in time of war.” Is her explanation persuasive?
First, Collyer invokes a formal, geographic point: The alleged decision, she writes, would have taken place in Washington, D.C. This, she says, means the decision was not “in the field” for APA purposes.
Is that correct? On one hand, it is plainly the case that D.C.-based military decision making is not occurring in-theater in relation to combat operations in Syria/Iraq. On the other hand, it is equally clear that targeting decisions that happen to be made in D.C., but that concern operations down range are, functionally, field-related decisions. The fact that technology enables such decisions to be made at a safe remove (and that the political, policy and diplomatic salience of the decisions warrants engagement by the most senior, U.S.-based government officials) does not change the military nature and combat-relevance of the decision. This fascinating 2010 article in the Administrative Law Review by Katherine Kovacs recounts the historical context of the “military authority” exemption. She concludes that “in the field” has had a contested meaning in federal law over time but that at the time of the relevant enactment it was understood in a functional, rather than formalist, way. That makes sense to me, and we can expect the government to home in on this argument on appeal.
Second—and more controversially, it seems to me—Collyer also concludes that the kill-capture designation is not one that pertains to a “time of war.” This is a bit stunning at first blush, perhaps, but a close read suggests that Collyer is reacting in no small part to what may have been a weak effort by the government to address this issue.
She writes that the government “fail[ed] to identify the war in which the United States is or was engaged” and that it “relegate[d] the argument to a single sentence in a footnote” (op. at 16). Of course, it probably shouldn’t require much more than a single sentence to remind everyone that there has long been a massive armed conflict in Syria and Iraq and that the United States has been party to that conflict for years. Collyer points out, however, that the government both in briefing and in oral argument apparently took the position that the war in Syria “is an internal civil war among Syrians, in which the United States merely provides military assistance” (op. at 17). She goes on to acknowledge both that non-traditional wars can be “wars” for APA purposes and that she is aware the “U.S. military is engaged in warfare in Syria and elsewhere.” Id. Still, she says, the government so conspicuously fails to make that argument—and indeed, seemed to try to avoid it—that she feels obliged to conclude that the “time of war” element has not been satisfied.
If the government really did fail to advance the claim that there is indeed a relevant “war” underway in Syria and Iraq—and especially if it tried to deny U.S. participation as a belligerent in that setting—then I suppose it has only itself to blame. But it is pretty stunning—and feels awfully formalistic too. The “in the field” question is an interesting and ambiguous matter, yes, but the “time of war” language seems clearly and obviously to be satisfied by the well-known circumstances of U.S. involvement in Syria and Iraq (unless one wishes to treat “war” for APA purposes as a term of art coextensive with the use of the same word in the declare war clause, and then follow the Obama and Trump administration’s claims about the narrow scope of the concept in that setting).
What about the political-question doctrine?
As noted above, Bates previously determined that the suit by Anwar al-Awlaki’s father could not proceed because it presented non-justiciable political questions (and because, for similar reasons, discretion favored declining to provide equitable relief). And as also noted, Collyer disagreed in the second al-Awlaki suit, finding that the balance must be struck differently when an American citizen’s right to life is in issue. So, not surprisingly, she reached a similar conclusion here: At least some of Kareem’s claims are justiciable.
Before noting which claims made the cut, I want to zero in on an interesting part of the court’s analysis of this question. This time around, Collyer does not simply take a different view from Bates but, rather, argues that the entire al-Awlaki litigation is distinguishable. In particular, she argues that the decision to target al-Awlaki was made “thousands of miles away,” whereas this time, the decision was in Washington. Even if that is true, it does not seem relevant insofar as in both cases the decision concerns whether or not a particular person can be targeted with lethal force as part of an armed conflict; either kill-capture designations involve military judgments or they do not—regardless of where the persons involved are sitting when those decisions are made. But I’m also unsure of whether it is true. I’ll need to go back and read through “Operation Troy,” “Power Wars” and the like to be sure, but off the cuff, I’m pretty sure there were heavy elements of D.C.-based decision making in al-Awlaki’s case too (certainly the Justice Department’s vetting of the constitutional issues were not occurring down range). At any rate, the attempted distinction seems unnecessary given the judge’s prior ruling in al-Awlaqi II.
So, which claims by Kareem ultimately made the justiciability cut?
1. APA prohibition on arbitrary/capricious action
Not this one. Collyer notes that Kareem claims that the government has failed to adhere to the presidential policy guidance (PPG) in designating him. She finds this non-justiciable, reasoning that the PPG does not create judicially manageable standards and in any event does not create any rights.
2. Executive Order 12333’s assassination ban; ICCPR Article 6 Right to Life; War Crimes Act; Section 956(a); and the AUMF
Being a national-security-law nerd, I confess I was hoping for extended analyses of all these arguments. Alas, no. The opinion dismisses these in short order, reasoning that none could proceed without the court eventually having to make a “finding on the propriety” of a “military action” consisting of putting Kareem on the kill-capture list. That, the court says, is not justiciable.
Pause there. If putting him on the kill-capture is a non-justiciable military judgment, one might think that would put an end to all claims Kareem might make about that judgment. But Collyer applies this logic only to the statutory, executive order and ICCPR claims, not to the remaining—constitutional—claims. The constitutional claims, she notes, are different.
3. The Fifth Amendment Due Process Claim
This part is mostly straightforward. Just as Hamdi (and, more recently, Doe v. Mattis) show that courts can entertain a procedural due-process argument about the military judgment to hold an American citizen in detention as an enemy combatant, so too courts could entertain such an argument as to an American citizen being added to a kill-capture list.
So far so good. For a second time, however, Collyer seems at pains to not state that Bates was wrong in al-Awlaki I when he reached a contrary conclusion. She writes that that case was different because it involved military judgments made down range. As noted above, I’m not persuaded that these situations are different at all. And I do think it matters.
The doctrinal line of justiciability would make sense if it were drawn between, on one hand, decisions over whether to add a citizen to a list that authorizes their targeting and, on the other hand, decisions to later act on that authority based on the sudden emergence of actionable intelligence. I’m sure Collyer would agree with that. But the opinion suggests an additional doctrinal line, such that some decisions in that first category also would be off-limits to judicial review based simply on geography.
4. The Free Speech (First Amendment) and Unreasonable Seizure (Fourth Amendment) Claims
Collyer does not discuss these separately but, instead, includes them with the Fifth Amendment due-process claim. So, both of these also survive for now.
What about the State Secrets Privilege?
For better or worse, it’s not clear to me how this suit can go forward without encountering a state-secrets-privilege obstacle, but the issue has not yet come up. Stay tuned.