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In ‘kill list’ case, judge questions government’s unilateral authority to kill U.S. citizens abroad

A Hellfire missile hangs from a U.S. Air Force drone at a secret air base in the Persian Gulf region on Jan. 7, 2016. (John Moore/Getty Images)

A federal judge Tuesday challenged a U.S. government claim of unilateral authority to kill American citizens abroad, speaking at a hearing for a lawsuit brought in Washington by two journalists who say they are wrongly being targeted as terrorists.

U.S. District Judge Rosemary Collyer didn’t indicate whether she would toss out the case, as the government has requested, but she repeatedly asked government attorneys whether national security concerns trump individual citizens’ rights, allowing one to be put on a “kill list” without any notice or challenge.

Courts have left open that question since the rise of the U.S. ­targeted-killing program after the Sept. 11, 2001, terrorist attacks.

“Are you saying a U.S. citizen in a war zone has no constitutional rights?” Collyer asked Justice Department attorney Stephen Elliott in the 90-minute hearing. “If a U.S. person is intentionally struck by a drone from the U.S., does that person have no constitutional rights to due process . . . no notice, anything?”

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Collyer is no stranger to the issue. In 2014, she dismissed a challenge to the Obama administration over drone-strike killings of three U.S. citizens in Yemen in 2011, including a U.S.-born al-Qaeda planner and propagandist, Anwar al-Awlaki.

Collyer rejected a claim brought by Awlaki’s father, saying it would impermissibly inject courts into “the heart of executive and military planning and deliberation.”

In that case, however, U.S. officials publicly disclosed beforehand that Awlaki was the first U.S. citizen added to a list of terrorism suspects subject to lethal operations by the CIA with specific approval of the White House. A federal appellate court later released a previously secret, 41-page government memo outlining its legal justification.

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Collyer said Tuesday that Awlaki’s case “was more clear to me because he was a terrorist and claimed to be one.” Here, one of the plaintiffs is a U.S. citizen, Bilal Abdul Kareem, and he’s “saying, ‘You can’t kill me without due process.’ ”

“I’m very concerned about the rights of a U.S. citizen who . . . asserts that he is not a combatant, that he has not taken sides. He is just a journalist doing his job,” Collyer said.

The case comes as President Trump’s administration has stepped up drone and other air attacks after seeking to ease the geographical limits of such lethal strikes, as well as the thresholds of acceptable civilian casualties and other constraints.

The U.S. government will neither confirm nor deny whether Abdul Kareem or Ahmad Muaffaq Zaidan, the other plaintiff in the case, have been designated national security threats.

Abdul Kareem, a freelance journalist who grew up in New York, and Zaidan, a former Al Jazeera bureau chief in Pakistan, deny that they are militants but say they have been mistaken as such because of their frequent contact with members of al-Qaeda and other extremist groups. Zaidan twice interviewed Osama bin Laden before September 2001.

Abdul Kareem, who has drawn public criticism for his uncritical interviews with al-Qaeda-linked militants in Syria, alleged that in June and August 2016, he was narrowly missed five times in that country by U.S. airstrikes aimed at his vehicles, office and a site where he was filming an interview, including one attack that he said involved a U.S.-made Hellfire missile fired from a drone.

“The attacks cannot be attributed to mistake or coincidence,” his attorneys said.

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Zaidan, who has Pakistani and Syrian citizenship, alleged that after news reports he wrote in May 2015 angered Syrian President Bashar al-Assad’s regime, Syrian state television falsely claimed that Zaidan is a member of al-

At about the same time, Zaidan alleges, a leaked U.S. government document indicated that he was named by a U.S. National Security Agency metadata tracking program allegedly used by the CIA and called Skynet.

Zaidan cited what appear to be presentation slides leaked by former NSA contractor Edward Snowden and published by the Intercept that singled Zaidan out as the “highest scoring” target among tracked couriers for al-Qaeda who traveled to two cities in Pakistan in a study using “advanced, cloud-based analytics.”

Zaidan is neither a courier for nor member of al-Qaeda, his lawyers said, but fearing for his life, he left Pakistan for Al Jazeera headquarters in Qatar and “remains at risk that the U.S. will kill him.”

The United States was previously accused of targeting the network’s journalists, bombing its Baghdad and Kabul bureaus in 2003 and 2001, respectively, in what the government said were unintentional strikes.

Elliott declined to confirm that U.S. drones were used in Syria, or that the United States is at war there. As is common in national security cases, the government argued that neither man could remotely substantiate his claims given the ­secrecy around such matters, while it also asserted the executive branch’s unfettered authority to conduct military operations abroad under the constitutional separation of powers.

Elliott also argued, however, that if Abdul Kareem’s experiences were true as alleged, they were more likely due to his choice “to work as a journalist in a country rife with violence and warfare,” than to his being placed on a kill list.

Zaidan had no basis to presume that the government used the alleged Skynet program, nor that it “targets for lethal action every person that it identifies as an al-Qaeda terrorist, or as associated with terrorists,” Elliott said.

In any event, he called their case indistinguishable from previous lawsuits brought by relatives of bystanders killed in drone strikes in Yemen, and by the owner of a factory hit in a U.S. airstrike in Sudan 1998, which were dismissed on grounds that they posed “political questions” off limits to court review. The alternative, he said, would require judges to wade into the thick of highly classified intelligence assessments, military ­decision-making and foreign relations central to executive authority.

Plaintiffs attorney Tara J. Plochocki likened the case instead to challenges from people who say they were wrongly placed on U.S. no-fly lists or hit with economic sanctions. The men were also represented by Reprieve, a human rights group based in London and New York City.

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Plochocki argued that when Awlaki’s father tried to sue on his son’s behalf while he was still alive, another federal judge in Washington in 2010 ruled that nothing prevented the designated terrorist Awlaki from peacefully presenting himself at a U.S. embassy and asserting his rights in court.

“We’re taking [the judge] up on that offer,” Plochocki said, such as by asserting their innocence in a sworn affidavit, court filing, administrative hearing or other means.