The Case for Judicial Review of Targeted Killings of U.S. Citizens
The use of drone strikes in targeted killings has become a key part of the U.S. counterterrorism strategy, but the question of whether a U.S. citizen can challenge the government’s decision to target him for lethal action remains unresolved.
Unmanned Aerial Vehicles (UAVs), more commonly known as drones, have become a central part of U.S. counterterrorism strategy.
By: Adaeze eze, Staff Member
On November 16, the U.S. Court of Appeals for the D.C. Circuit will hear oral argument in Kareem v. Haspel, a case that emerged from Zaidan v. Trump. The case involves a U.S. citizen seeking a court order to remove him from a “terrorist kill list” on which the U.S. government placed him.
BACKGROUND
Bilal Abdul Kareem is a U.S. citizen and journalist whose work brings him in frequent contact with rebel or terrorist organizations in Syria. On March 30, 2017, Kareem and his colleague Ahmad Muaffaq Zaidan, filed claims in the U.S. District Court for the District of Columbia alleging that the U.S. government wrongfully designated them as terrorists and lawful targets for lethal action. The court dismissed Zaidan’s suit for lack of standing, concluding that his allegations of imminent harm were not supported by the inclusion of his name on SKYNET, a U.S. intelligence document in the public domain that lists potential terrorists. Kareem, however, whose name also appeared on the list, was able to show imminent harm and establish standing by pointing to five near-miss attacks that occurred in a three-month period.
At the district court level, Kareem presented a number of arguments challenging the U.S. government’s decision to place him on a kill list, claiming that the decision violated an executive order banning the assassination of persons abroad, contravened international law, constituted arbitrary and capricious agency action as defined in the Administrative Procedure Act (APA), and violated constitutional due process protections.
The court dismissed all but the constitutional claims as nonjusticiable political questions. In dismissing the APA claims, the court reasoned that the claim was nonjusticiable because “the Presidential Policy Guidance provides no test or standard that must be satisfied before the government may add an individual . . . to the Kill List; it only specifies the steps and processes that the relevant defense agencies must complete.” Zaidan v. Trump, 317 F. Supp. 3d 8, 25 (D.D.C. 2018). In other words, there was no judicially manageable standard under which the court could review the decision.
Kareem appealed to the D.C. Circuit, challenging the district court’s dismissal of the remaining constitutional claims. Oral argument this month will center on the state secrets doctrine as applied to the constitutional claims. However, the APA claims dismissed in the original suit that were not raised on appeal present interesting considerations for a phenomenon called the individualization of national security. Individualization in national security policy offers a rebuttal against arguments for the deference courts traditionally give to executive action in the foreign relations space — in this case, agency action designating U.S. citizens as lawful targets for lethal action.
THE INDIVIDUALIZATION OF NATIONAL SECURITY
Legal scholars describe the individualization of national security as a shift towards policy decisions and measures that target individuals instead of collective groups and organizations. In drone strike policy, this individualization presents a stronger case for standing. To establish standing in federal court, a plaintiff must satisfy a three-prong test. First, the plaintiff has to suffer an “injury in fact” that is concrete and particularized and actual or imminent; second, there must be a causal relation between the injury and the defendants’ actions; and third, the injury must be redressable by a favorable decision of the court.
The test is demanding, so alleging one’s inclusion on a kill list must be supported by a strong showing of facts. For Zaidan, the court invalidated his claims for lack of standing based on its finding that they were too speculative to evidence an injury in fact. However, Kareem was able to show an imminent harm that was concrete and particularized due to the government’s decision to target him individually, as evidenced by the five near-miss attacks that occurred in close proximity to him.
The Supreme Court’s decision in Clapper v. Amnesty International is a useful contrast that demonstrates the impact of individualized policy decisions on the strength of a showing of standing. The plaintiffs in Clapper challenged the provision of the Foreign Intelligence Surveillance Act (FISA) permitting surveillance of non-U.S. persons. However, the Court concluded that the plaintiffs lacked standing because they did not present evidence that their communications were being monitored. The Court reasoned that “even if the Government were to conduct surveillance of [plaintiffs’] foreign contacts, [plaintiffs] can only speculate as to whether their own communications with their foreign contacts would be incidentally acquired.”
The broader application of the data surveillance policy in question in Clapper meant that the plaintiffs could not show evidence of harm directed specifically at them, but rather alleged that their information could incidentally be swept up in U.S. surveillance of their foreign contacts. In contrast, both Kareem and Zaidan could better allege that they were the direct and specific targets of harm. Although the Court found that Zaidan lacked standing, its finding was not grounded in a dispute as to whether he alleged potential harm directed towards him specifically, but rather that it would be too speculative for the Court to conclude that one’s inclusion on SKYNET automatically meant that a person was on the kill list. For Kareem, the individualized application of the policy strengthened his showing of injury-in-fact. Kareem could prove his inclusion on a kill list by pointing to individualized, imminent harm — five alleged attempts on his life by drone strike.
THE CASE FOR APA REVIEW
In May 2013, President Obama adopted Presidential Policy Guidance (PPG) “establish[ing] the standard operating procedures for when the United States takes direct action, which refers to lethal and non-lethal uses of force . . . against terrorist targets outside the United States and areas of active hostilities.” In addition to guidelines for determining if an individual should be targeted for lethal action, the PPG also set guidelines that required presidential approval for “operational plans to target overseas terrorist suspects with drones or other weapons outside war zones.”
President Trump replaced Obama’s PPG with a new set of Principles, Standards, and Procedures (PSP), rolling back many of the Obama-era drone strike policies. Among other changes, Trump removed himself entirely from the decision-making process for targeted drone strikes. Final authority now rests with executive agencies, increasing the importance of the administrative decision making process.
Consequently, key aspects of drone strike policy are implemented by agencies and guided by the administrative process. As Elena Chachko notes in Administrative National Security, “[t]he administrative state has . . . established independent mechanisms to effectuate those powers.” The consequence of this shift is that these agency-developed mechanisms offer a possible role for judicial review.
Increased agency authority and the promulgation of executive guidance offer a possible basis for judicial review of agency kill list determinations under the APA framework. The routinized nature of agency action in determining lawful targets for lethal action mirrors other forms of agency action that courts regularly review.
Policy guidance provides criteria for determining lawful lethal targets, creating a basis for judicial review of kill list determinations. The PPG under Obama articulated standards for determining whether an individual should be targeted for lethal action. Final determinations resulted from a rigorous interagency process under which only certain agencies could nominate individuals to be targeted. The process required an assessment that “no other reasonable alternatives to lethal action exist[ed] to effectively address the threat to U.S. persons,” and all nominations for U.S. citizens were presented to the President for a final determination.
Reporting suggests that some of these standards have been loosened under the Trump administration, but the guidance offers a rubric for reviewing agency kill list determinations. Coupled with a growing willingness of courts to review agency action in foreign affairs (a phenomenon often described as the “normalization” of foreign affairs) and the increased agency role, there is a wider opening for courts to review aspects of drone strike policy now than at the start of the War on Terror.
Notably, the PPG is careful to assert that it does not create any “right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States.” But the individualization and routinization of agency action have diminished the strength of traditional arguments against judicial review in foreign affairs. The widespread understanding by courts of the unique challenges in foreign relations encouraged judicial deference in that area. Courts often invoke the political question doctrine or separation of powers to abdicate themselves from their role in determining the constitutionality of executive action. However, the growing resemblance of certain national security policy to administrative law evidenced by an increased agency role and a routinized application of policy measures aimed at individuals draws these disputes back into the court’s areas of expertise.
Kareem’s APA claims are not at issue on appeal. The constitutional claims raised in this case clearly invoke the strongest case for judicial review. As the district court noted, the “interest in avoiding the erroneous deprivation of his life is uniquely compelling.” Zaidan, 317 F. Supp. 3d at 28. Yet Kareem’s case implicates areas of U.S. national security policy that are increasingly dominated by administrative agencies. Particularly where these policy decisions involve the deprivation of life, agency action should be checked, and courts are best suited to oversee this area of executive action.
For Kareem, this issue is more than hypothetical. It requires a search for a constitutional or statutory challenge to an agency’s decision to designate him a lawful target for lethal action. In light of the centrality of drone strike policy in U.S. counterterrorism efforts, this dire question should loom large in the public forum.
Adaeze Eze is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Georgetown University’s School of Foreign Service in 2017. Adaeze is Vice President of Columbia Law’s National Security Law Society.