DC Court: State Secrets Privilege Trumps Any Citizens' Right To Know Whether Or Not Their Own Gov't Is Trying To Kill Them

from the DFA2K19 dept

The government can try to kill you without due process as long as it can successfully invoke state secret privileges. That's the jist of the decision [PDF] just released by Judge Rosemary M. Collyer of the DC District Court.

Journalist Bilal Abdul Kareem believes he has been placed on the US government's "kill list." Kareem, due to the nature of his reporting, spends a fair amount of time talking to militants involved with terrorist groups like Al-Qaeda. After a series of Syrian airstrikes that narrowly missed him, Kareem concluded the government must have decided he was a terrorist worth killing, even though he was only reporting on terrorist activity in Syria.

His case was allowed to proceed in 2018 by Judge Collyer (a former FISA judge), but now she is ending it. The state secret privilege invoked by the government is just too high to surmount, even for an American journalist who has expressed legitimate concern his own government is trying to kill him. At least Collyer has the honesty to deliver the crushing blow right up front.

What constitutional right is more essential than the right to due process before the government may take a life? While the answer may be none, federal courts possess limited authority to resolve questions presented in a lawsuit, even when they are alleged to involve constitutional rights. This is such a case. Despite the serious nature of Plaintiff’s allegations, this Court must dismiss the action pursuant to the government’s invocation of the state secrets privilege.

At least this part is blunt, concise, and mostly coherent. Going into greater detail (as Collyer's decision does) just puts the blinding glory of the government's Heller-esque powers on full display.

There is still a question as to whether the unavailability of the requested information is fatal to Mr. Kareem’s complaint. A court must dismiss a case in which a privilege of state secrets is sustained when: (1) disclosure is necessary for the plaintiff to make its prima facie case; (2) disclosure is necessary for the defendant to defend itself; or (3) further litigation would present an unjustifiable risk of disclosure. See Mohamed, 614 F.3d at 1087. The United States focuses on Mr. Kareem’s prima facie case, arguing that Mr. Kareem cannot establish his standing to sue without the information. The Court agrees and notes that all three reasons justify dismissal.

See how that works? If a plaintiff needs certain info to pursue claims against the government, the government can simply declare the info a state secret, instantly depriving the plaintiff of standing. Sure, there are other ways to handle this, like limited release of info to the judge and attorneys with security clearance, but the US is claiming Kareem's possible inclusion on a "kill list" is too secret to discuss even in secret… even when it has discussed its drone strike program publicly before.

It all comes down to this, which is an extremely disheartening thing to read in a nation whose government took the time to establish the rights this same government is now willing to walk all over with its invocation of state secrets privilege:

To prove his prima facie case, Mr. Kareem must be able to show he was in fact targeted by the United States with lethal force. The Court previously found Mr. Kareem alleged facts sufficient, if proven, to survive a motion to dismiss, but having now held that the government is not required to disclose whether Mr. Kareem has been targeted as alleged, it is impossible for Mr. Kareem to obtain the necessary information to prove his claims . Without access to the privileged information, Mr. Kareem is unable to establish whether he was targeted by lethal force or what information was considered in reaching the alleged decision to target him. Mr. Kareem is “incapable of demonstrating that [he has] sustained a violation of” his constitutional rights without the withheld information.

The end result of this circular reasoning is a decision that basically allows the government to act as if no rights violation has occurred. It's a cake and eat it too situation for the US government, which can go forward with any other plans it has to deprive other Americans of their due process rights by targeting them for extrajudicial killings. If any of those find themselves a bit too close to drone strikes, they have no avenue of redress that isn't blocked by state secrets privilege. The house always wins.

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Filed Under: bilal abdul kareem, due process, evidence, kill list, right to know, rosemary collyer, standing, state secrets