by Janet Phelan
While the country was riveted on the fall-out from the election results—one of the most divisive Presidential elections in recent history—as well as engaged with concerns about more Covid lockdowns, the DOJ quietly went to a court in a significant civil rights case and declared that the US can kill anyone, anywhere and claim “state secrets,” thus avoiding any judicial review or due process.
Bilal Abdul Kareem, who is a US born journalist and has worked for the BBC and CNN, filed a case in federal court in 2017 alleging that he had been put on a US government kill list. The pleadings cite at least four attempts on Kareem’s life in the Middle East, where he has been covering the conflict for a number of years. These attempts involve targeted drone strikes as well as one attack on his personal vehicle apparently by a Hell Fire missile. The citation of the Hell Fire is significant as this is a US weapon.
In September of 2019, Judge Rosemary Collyer in US District Court dismissed Kareem’s case after the DOJ cited “state secrets.” Oral arguments appealing Collyer’s decision took place in DC Court of Appeals on November 16, which you can listen to here.
Kareem’s attorney, Tara Plochocki, was first questioned as to the plausibility of the claim that Kareem himself was the target of the strikes, given that Kareem was working in a war zone. The questioning then focused on the attorney for the Department of Justice, Brad Hinshelwood. The judges asked him what potential remedy exists for a US citizen who is put on the kill list. The question also arose if this “state secrets” privilege would also pertain for a target on US soil.
Asserting the absolute privilege associated with “state secrets,” Mr. Hinshelwood suggests that Congress might want to pass some legislation. At that time, circa 37 minutes in, one can hear one of the judges say, somewhat incredulously, “He should try to get a bill passed?”
The judge persists, saying “My car keeps blowing up and I keep getting shot at…and the government’s position is, tough luck, you have no rights, you have no capacity to get yourself off the list…The government may execute me and there is nothing I can do about it?”
DOJ attorney Hinshelwood responds: “So an individual on the kill list…in that circumstance…given the courts competence to adjudicate claims…there is no recourse.”
The implications of this stance are staggering. As those working on legal reform issues know, American citizens are already being murdered through decisions handed down in probate guardianship proceedings. The head count of those murdered by police, annually, has also spiked considerably and justice for the victims is rarely delivered. Immunity given to nursing homes over the high Covid death rate in these facilities also points to a perception that certain populations have less rights than others, including apparently the right to exist.
“State secrets” constitutes an evidentiary rule rather than an Act of Congress. It was used first in the 1953 landmark legal case, USA vs. Reynolds, that saw the formal recognition of the state secrets privilege, a judicially recognized extension of presidential power.
Since that time, there have been several attempts to introduce an official “state secrets act.” The most recent, HR 3332, was introduced by Representative Jerrold Nadler and provided mechanisms by which the courts could determine if the claim of state secrets would affect a particular case. The Nadler legislation “Allows the government to: (1) assert the privilege in connection with any claim in a civil action to which it is a party, or (2) intervene in a civil action to which it is not a party in order to do so.” The legislation also gives the court some latitude in making this determination, stating that the court shall “(1) undertake a preliminary review of the information in question, and (2) provide the government an opportunity to seek protective measures under this Act.”
This bill was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations in January of 2014 and no action has been taken since.
The DC Circuit Court of Appeals’ decision on the Kareem case is pending.
So while we are celebrating Thanksgiving this year, we might want to be mindful that, as far as our government is concerned, we have no more rights than the turkey on the table.
(This article first appeared here: https://www.activistpost.com/2020/11/doj-asserts-it-can-kill-anyone-anywhere-and-claim-state-secrets.html)