Does the US Constitution allow President Donald Trump to order the assassination of innocent Americans in total secrecy? Such a question seems absurd; unfortunately, a US District judge has just answered in the affirmative.
Bilal Kareem is a US citizen of Syrian origin, who was living in Brooklyn and working as a stand-up comedian. Frustrated by the news coverage of the conflict in Syria and especially the failure of journalists to interview and try to understand the experience of the people actually involved in the conflict, Kareem moved to Aleppo and established the YouTube channel On the Ground News TV, which provided content to news outlets around the world.
Suddenly, drones started firing missiles at him. In the summer of 2016, he was nearly killed by Hellfire missiles fired by Predator drones five times.
Nobody but the US had weaponized drones in the region at the time. Based on publicly available information about how the US uses cellphone data to identify targets, it seemed likely that the US government had concluded, probably based upon its algorithms, that because Bilal Kareem was spending time interviewing rebels, he was a rebel himself. The result of using software to determine who to kill resulted in the US targeting one of its own, who was actually engaging in a deeply important First Amendment activity.
In 2017, Reprieve and my law firm filed a suit on behalf of Kareem and another Syria-based journalist in Washington DC, arguing that they had a due process right not to be placed on a Kill List and targeted for execution without being able to challenge the basis for that decision.
“He seeks his birthright,” wrote Judge Rosemary Collyer, a George W Bush appointee, “…a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession.”
This was a landmark ruling, and to most readers it would seem like common sense. However, the government then sought to dismiss it on the grounds that the government would have to reveal “state secrets” in telling Kareem whether or not he had been targeted and why.
This was a case in which the state secrets privilege would be tested against a US citizen’s right not to be killed by his government without some form of due process, and perhaps an opportunity to suggest why killing him was a mistake. The motion was accompanied by affidavits, largely classified, from the Director of National Intelligence and the Acting Secretary of Defense.
We argued that the government’s claim to be able to inflict death by drone strike made Bilal Kareem akin to a criminal defendant in a capital case, albeit facing execution without trial. In cases where the government relies on state secrets to prosecute a crime, and refuses to disclose them, the government must dismiss the case. Here, the government could simply have stated that whether or not Kareem had ever been on the Kill List, or could promise to take no efforts to try to kill him. But the government was unwilling to do that. It sought to prevent any from any judicial oversight of its decision.
The court found that the state secrets privilege was absolute; that the government had shown there was a national security concern that protected it from providing any information, even in a classified setting; and so any legal objection to Bilal Kareem’s assassination would be summarily dismissed.
No doubt there are secrets that a government needs to protect. But as recent events have shown, the government’s penchant for secrecy is reflexive and its claims are categorical.
As someone who has had Top Secret clearances, I have found it remarkable how easy it is to classify the most banal or embarrassing material. Edward Snowden faces the rest of his life in his prison for publishing secrets, most of which might better be debated in the public domain — after all, his revelations prompted German Chancellor Angela Merkel to compare the CIA to the Stasi for spying on their friends.
In the last week, we have seen reports of the classification of inculpatory telephone transcripts under the highest level of security, not to protect national security but to prevent a president’s corruption from seeing the light of day. The judiciary has a critical role to play in scrutinizing claims of secrecy, especially when it is invoked to prevent core First Amendment activity and someone’s life is at stake.
Some of us may be horrified that the US engages in assassination — execution without trial — at all. Regardless, surely when someone who claims to be innocent has compelling reason to think he is being targeted, the least we can expect in a democracy is a modicum of due process?