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DOJ Argues U.S. Can Kill Citizens at Its Discretion Under State Secrets Privilege

NEW YORK, NY - DECEMBER 11: A US Department of Justice seal is displayed on a podium during a news conference to announce money laundering charges against HSBC on December 11, 2012 in the Brooklyn borough of New York City. HSBC Holdings plc and HSBC USA NA have agreed to pay $1.92 billion and enter into a deferred prosecution agreement with the U.S. Department of Justice in regards to charges involving money laundering with Mexican drug cartels. (Photo by Ramin Talaie/Getty Images)
By Joseph Fawbush, Esq. on November 19, 2020 10:22 AM

As if there wasn't enough to keep you awake at night already, the Department of Justice on Monday, November 16, argued before the U.S. Court of Appeals for the District of Columbia that the federal government can kill U.S. citizens at its discretion if state secrets are involved.

If you're alarmed by that argument, you aren't alone. U.S. Circuit Judge Patricia Millet called this argument an "extraordinary . . . proposition" that would allow the Executive Branch of the federal government to "unilaterally decide to kill U.S. citizens," even on U.S. soil, without due process.

Two American Journalists Allegedly Put on U.S. Kill List

The case involves two journalists who say the U.S. wrongly labeled them as terrorists. One of the journalists, American Bilal Abdul Kareem, alleges U.S. intelligence program Skynet (yes, that is its real name) put him on the U.S. kill list due to metadata collected from his digital devices. He claims the government subsequently tried to kill him on five separate occasions. On one occasion, Kareem alleges he was attacked by a hellfire missile, which could possibly indicate U.S. government involvement.

However, not every judge on the panel was convinced. Judge Karen Henderson called these allegations a "spectacular delusion of some sort of grandeur" since the missile strikes occurred in Syria in 2016, during some of the worst fighting of the ongoing civil war. Bomb and missile strikes were frequent occurrences during that time. The government argues that Kareem's allegations are not plausible enough to move the case forward past the pleadings stage. Kareem alleges, however, that his vehicle was hit twice, and his office twice, indicating precision strikes.

It is a significant part of the lawsuit, as the D.C. Circuit Court of Appeals panel spent a lot of time on whether Kareem has standing since he's offering circumstantial evidence of being on the U.S. kill list.

State Secrets Privilege

Should the panel find Kareem has standing (which was by no means clear from oral arguments), the panel must decide what to do with the merits of the case. Under the doctrine of state secrets privilege, the federal government can block information that would compromise U.S. national security if released in litigation. The doctrine has increasingly been used by the federal government since the Bush Administration to block lawsuits against the U.S.

Tara Jordan Plochocki, who represents the plaintiffs, argues that the government is trying to greatly expand its rights under state secrets privilege to get "unfettered and unreviewable discretion to kill U.S. citizens at will."

Hinshelwood agreed that attempts by the government to kill its own citizens are a "serious undertaking" and that district courts have the right to take a careful look at the government's assertion of the state secrets privilege. However, he argues that if state secrets privilege is appropriately applied, courts cannot adjudicate the merits of the case. State secrets is an absolute privilege, even if it involves constitutional questions.

As Judge Millet offered as an example, what would happen if the Executive Branch put an American (on American soil) on its kill list? Would that American have any right at all to contest this designation? According to Hinshelwood, the only recourse would be for that person to go to Congress. But courts, he argues, have no role in that hypothetical.

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