A federal judge in Washington sparred with Justice Department lawyers Tuesday over the government’s claimed authority to place U.S. citizens on a “kill list” without public notification.
Speaking at a hearing on a lawsuit brought by two journalists, U.S. District Judge Rosemary Collyer repeatedly questioned government lawyers whether national security concerns outweigh a citizen’s right to know if he is being targeted for assassination or challenge his designation as a terrorist.
“Are you saying a U.S. citizen in a war zone has no constitutional rights?” Collyer asked Justice Department attorney Stephen Elliott during the hearing, according to the Washington Post. “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?”
The legal boundaries of the government’s authority to kill American citizens suspected of terrorist activity overseas have remained murky since the rise of U.S. targeted-killing program after the 9/11 attacks.
Like the Obama administration, the Trump administration claims it has the constitutional authority to carry out extrajudicial killings of U.S. citizens who present a “continued and imminent threat” and are members of groups against whom Congress has authorized military force. Many civil liberties groups say targeted killings of U.S. citizens abroad violate constitutional rights to a trial and due process.
The most well-known of such targeted killings is the case of U.S.-born Anwar al-Awlaki, the al-Qaeda propagandist and recruiter who was killed by a U.S. drone strike in Yemen in 2011. Collyer is deeply familiar with the case: In 2014, she dismissed a lawsuit brought by Awlaki’s father on procedural grounds.
On Tuesday, however, Collyer told Justice Department lawyers that the Awlaki lawsuit involved a much different set of circumstances than the one brought by the journalists. Notably, U.S. officials publicly disclosed they had made Awlaki the first American citizen subject to lethal force by the CIA before ordering the drone strike that killed him, Collyer said.
Awlaki’s case “was more clear to me because he was a terrorist and claimed to be one,” she said.
“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 added.
Tuesday’s hearing stemmed from an underlying suit filed in 2017 by Bilal Abdul Kareem, an American citizen, and Ahmad Muaffaq Zaidan, a dual Syrian-Pakistani citizen. Both men regularly interview al-Qaeda leaders and other Islamic militants in the course of their work, which they claim has drawn the attention of an alleged NSA intelligence program called Skynet. Because of their frequent contacts with terrorists, the Skynet program has identified Kareem and Zaidan as potential targets for assassination, the men claim.
Elliot countered that neither man can come close to proving his claims, given the secrecy shrouding the U.S. targeted killing program. He also asserted the executive branch’s authority to conduct military operations abroad under constitutional war-making powers.
If Kareem’s claims of being targeted by drone strikes are true, they were due to his choice “to work as a journalist in a country rife with violence and warfare,” and not because he was placed on a kill list, Elliot added.
Kareem and Zaidan are not seeking judicial review of the legality of the U.S. drone program, only a narrow due-process relief under the Administrative Procedure Act, according to Tara Plochocki, the plaintiffs’ lawyer.
“Plaintiffs want an opportunity to be meaningfully heard,” she said, according to Courthouse News Service.
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