DC Court: State Secrets Privilege Trumps Any Citizens' Right To Know Whether Or Not Their Own Gov't Is Trying To Kill Them

from the DFA2K19 dept

The government can try to kill you without due process as long as it can successfully invoke state secret privileges. That’s the jist of the decision [PDF] just released by Judge Rosemary M. Collyer of the DC District Court.

Journalist Bilal Abdul Kareem believes he has been placed on the US government’s “kill list.” Kareem, due to the nature of his reporting, spends a fair amount of time talking to militants involved with terrorist groups like Al-Qaeda. After a series of Syrian airstrikes that narrowly missed him, Kareem concluded the government must have decided he was a terrorist worth killing, even though he was only reporting on terrorist activity in Syria.

His case was allowed to proceed in 2018 by Judge Collyer (a former FISA judge), but now she is ending it. The state secret privilege invoked by the government is just too high to surmount, even for an American journalist who has expressed legitimate concern his own government is trying to kill him. At least Collyer has the honesty to deliver the crushing blow right up front.

What constitutional right is more essential than the right to due process before the government may take a life? While the answer may be none, federal courts possess limited authority to resolve questions presented in a lawsuit, even when they are alleged to involve constitutional rights. This is such a case. Despite the serious nature of Plaintiff’s allegations, this Court must dismiss the action pursuant to the government’s invocation of the state secrets privilege.

At least this part is blunt, concise, and mostly coherent. Going into greater detail (as Collyer’s decision does) just puts the blinding glory of the government’s Heller-esque powers on full display.

There is still a question as to whether the unavailability of the requested information is fatal to Mr. Kareem’s complaint. A court must dismiss a case in which a privilege of state secrets is sustained when: (1) disclosure is necessary for the plaintiff to make its prima facie case; (2) disclosure is necessary for the defendant to defend itself; or (3) further litigation would present an unjustifiable risk of disclosure. See Mohamed, 614 F.3d at 1087. The United States focuses on Mr. Kareem’s prima facie case, arguing that Mr. Kareem cannot establish his standing to sue without the information. The Court agrees and notes that all three reasons justify dismissal.

See how that works? If a plaintiff needs certain info to pursue claims against the government, the government can simply declare the info a state secret, instantly depriving the plaintiff of standing. Sure, there are other ways to handle this, like limited release of info to the judge and attorneys with security clearance, but the US is claiming Kareem’s possible inclusion on a “kill list” is too secret to discuss even in secret… even when it has discussed its drone strike program publicly before.

It all comes down to this, which is an extremely disheartening thing to read in a nation whose government took the time to establish the rights this same government is now willing to walk all over with its invocation of state secrets privilege:

To prove his prima facie case, Mr. Kareem must be able to show he was in fact targeted by the United States with lethal force. The Court previously found Mr. Kareem alleged facts sufficient, if proven, to survive a motion to dismiss, but having now held that the government is not required to disclose whether Mr. Kareem has been targeted as alleged, it is impossible for Mr. Kareem to obtain the necessary information to prove his claims. Without access to the privileged information, Mr. Kareem is unable to establish whether he was targeted by lethal force or what information was considered in reaching the alleged decision to target him. Mr. Kareem is “incapable of demonstrating that [he has] sustained a violation of” his constitutional rights without the withheld information.

The end result of this circular reasoning is a decision that basically allows the government to act as if no rights violation has occurred. It’s a cake and eat it too situation for the US government, which can go forward with any other plans it has to deprive other Americans of their due process rights by targeting them for extrajudicial killings. If any of those find themselves a bit too close to drone strikes, they have no avenue of redress that isn’t blocked by state secrets privilege. The house always wins.

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Comments on “DC Court: State Secrets Privilege Trumps Any Citizens' Right To Know Whether Or Not Their Own Gov't Is Trying To Kill Them”

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85 Comments
Anonymous Anonymous Coward (profile) says:

It is impossible to define impossible when it is possible

"…it is impossible for Mr. Kareem to obtain the necessary information to prove his claims…"

It is not impossible, but it would take the government overcoming its embarrassment at possessing lists that they intend to extrajudicialy terminate the life of US citizens who have not been convicted of crimes that carry the death penalty. If all it takes is for the government to claim ‘state secrets’ to kill anyone at all, then what is to stop them from killing anyone they don’t like and claim ‘state secret’ when brought to trial or sued for violation of Constitutional rights.

It’s not that I’m surprised that this judge didn’t take the time to review the lists as well as the underlying reasoning behind not only the creation of the lists but the reasoning for inclusion of anyone listed, but also that she publicly twisted and turned to justify the governments ‘state secret’ defense without understanding the necessity of that secrecy. That unexplained ‘state secrets’ were sufficient to overcome ‘standing’, where is the hope that anyone else could be safe from government sanctions, up to and including extrajudicial death. I would bet several good Internets that the government could come up with enough weasel words to explain the necessity of the so called ‘state secret’ without actually revealing the secret. Whether that explanation would pass the laugh test is another story.

I never knew that they allowed judges to play Twister while on the bench.

We either live by and respect the Constitution or we turn into an authoritarian state. Edicts like this one show once again that we are on the move toward authoritarianism, which is contrary to the established basis for our country, and a violation of the Judges oath to uphold the Constitution.

David says:

Re: It is impossible to define impossible when it is possible

We either live by and respect the Constitution or we turn into an authoritarian state.

Sure, but that’s not the judge’s call to make.

Edicts like this one show once again that we are on the move toward authoritarianism, which is contrary to the established basis for our country, and a violation of the Judges oath to uphold the Constitution.

Reexamining the laws dictating the judge’s course here for constitutionality is only an avenue available to the Supreme Court.

Anonymous Anonymous Coward (profile) says:

Re: Re: It is impossible to define impossible when it is possibl

Sorry, while the Supreme Court might be the only judicial avenue available for reexamination, that does not mean that each and every one of us does not have the right, and responsibility to consider the ramifications of totalitarian action by anyone. Nor is it the only recourse. I think submitting to the governments cry of ‘state secrets’ all the time goes beyond the powers invested in our government.

While I do think that some things should be closely held for some short periods of time, I do not think the government should be able to act without recourse…in anything. In our system it is up to the courts to aid us in that, and here, the court let us down.

procopius (profile) says:

Re: Re: Re: It is impossible to define impossible when it is pos

If you had done a Google search on "state secrets doctrine" you would have found the precedent this judge is constrained by in the Reynolds decision in 1953. This was one of many Supreme Court decisions I think went against the Constitution and simple justice. Look for many more in coming years as the Federalist Society judges the Republicans have been stuffing into lifetime appointments render their judgments. The doctrine has been used a lot since 9/11

James Burkhardt (profile) says:

Re: Re: It is impossible to define impossible when it is possibl

Reexamining the laws dictating the judge’s course here for constitutionality is only an avenue available to the Supreme Court.

Not true. Any court could examine a fresh law and find it unconstitutional. They are bound by previous decisions made by courts of higher authority.

But none of that matters as the state secrets doctrine in the US is not a law, but a judicially recognized power of the executive. The issue is that only the SCOTUS can re-examine SCOTUS decisions which established the boundaries of state secrets. The lower courts have been unwilling to challenge state secrets claims at any level, and only a strong precedent from the SCOTUS is likely to give judges any willingness to challenge them in the future.

Tanner Andrews (profile) says:

Re: Re: It is impossible to define impossible when it is possibl

Reexamining the laws dictating the judge’s course here for constitutionality is only an avenue available to the Supreme Court.

Not so. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137,177 (US 1803).

As part of the judicial department, it was the judge’s duty to examine the law including any state secret provisions, to see whether they were authorized by the Constitution. Because the Federal govt is intended to be one of limited and enumerated powers, a thing not within those enumerated powers, or necessary to their function, is probably unconstitutional.

Rekrul says:

Re: It is impossible to define impossible when it is possible

It’s not that I’m surprised that this judge didn’t take the time to review the lists as well as the underlying reasoning behind not only the creation of the lists but the reasoning for inclusion of anyone listed, but also that she publicly twisted and turned to justify the governments ‘state secret’ defense without understanding the necessity of that secrecy.

My take on the article isn’t that she had access to the lists, but chose to defend them instead of reading them. It’s that the government told her that all of that information was off-limits to everyone, including her, and with no actual evidence to prove his case, the judge had no choice but to dismiss it.

You can’t base a case on "I think…", you need some kind of proof. You have to have something to show the court and if the government holds all the information that you need and won’t give it to you, and the judge doesn’t have the power to force them to hand it over, what else can they do?

Anonymous Anonymous Coward (profile) says:

Re: Re: It is impossible to define impossible when it is possibl

The judge does have the power. She could just order them to give her the information. Now that order might get appealed, and that appeal might go to the Supreme Court, and they could rain some judicial hell down on the judge, but the statement would have been made. If many judges do the same thing, and call out the Supreme Courts error in giving the government such power in violation of the Constitution, then maybe the Supreme Court will reconsider its position.

Anonymous Coward says:

Re: Re: Re: It is impossible to define impossible when it is pos

It was Rumsfeld’s company that pushed for aspertame to become a legal sweetener even though one of the main ingredients converts to formaldehyde at 84 deg. f. in the human body. Formaldehyde in the human body https://www.google.com/search?client=safari&hl=en-us&ei=eV2SXfDIMuXO5gKP-aHADg&q=formaldehyde+and+aspartame&oq=formaldehyde+and+aspartame&gs_l=mobile-gws-wiz-serp.3..0j0i22i30j33i299l2.178196.189235..194205…0.1..0.177.3222.0j24….2..0….1………0i71j41j0i10j33i160j0i22i10i30.3JiFFOtKmi4

procopius (profile) says:

Re: It is impossible to define impossible when it is possible

There’s nothing new about this. It goes back to the Supreme Court’s <i>Reynolds</i> decision in 1953. It’s been frequently used since 9/11 to withhold standing from plaintiffs. There was a lot of hope Obama would restrict its use, but he continued it, and then went on to create the "kill list." I have many grievances against Obama, but that one is the greatest. The worst thing is, if you’re placed on the "kill list," there’s nothing you can do. Back when it was widely known that Anwar al-Awlaki was scheduled to be killed many people were saying he should "turn himself in," but how could he? He was never charged with any crime. "Turn himself in" to whom? For what? Same with Mr. Kareem.

That One Guy (profile) says:

How's the saying go?

‘I love the smell of stockyards in the morning, smells like piles of bullshit.’

If the government can claim ‘state secrets’ on something that is literally life or death, they can use that to hide and get away with anything.

Is the government trying to kill you? State secrets.

Is the government spying on you? State secrets.

Is the government violating your rights? State secrets.

Was the evidence gathered to convict you of a crime collected legally? State secrets.

If ‘state secrets’ can trump someone’s life then rights and constitutional protections have been thrown clean out the window, as the government essentially has unchecked power to do whatever they want, and all they have to do is mutter two magic words: ‘State Secrets.’

AnonyOps says:

Re: How's the saying go?

Well in my examination the government corruption is actual fraud on different levels and each part was meant to be reported to the Tax and Trade Bureau Officers in the US Treasury Dept. Figure that one out…

However, I cannot find any sheet of paper document upon which to report the miss use of taxes for these and other high crimes. The the treasury does have a hotline number for the sheeple though.

See: 18 U.S. Code § 245 – Federally protected activities a(1) (2), b 2(E)
18 U.S. Code § 241 – Conspiracy against rights
18 U.S. Code § 242 – Deprivation of rights under color of law
26 U.S. Code § 7214 – Offenses by officers and employees of the United States a (4 thru 9)

27 CFR 70.333 – Offenses by officers and employees of the United States.
2 U.S. Code § 192 – Refusal of witness to testify or produce papers
31 CFR — Money and Finance: Treasury

Hugo S Cunningham (profile) says:

War zones and pointer dogs

The reporter was operating in a war zone. Over its history, the USA has killed hundreds of thousands of people in war zones without due process. If they were trying to kill him outside a war zone without due process, however, that would indeed bear the sinister totalitarian overtones invoked here.

If they are trying to kill him, the best way would be to leak rumors that he is working for the CIA, then furiously denounce the irresponsibility and disloyalty of the rumor-mongers.

More likely, they have gained respect for his ability to find jihadists, and have been using him as an (unsuspecting) pointer dog to locate them.

Anonymous Coward says:

Re: Re: War zones and pointer dogs

You don’t get to kill anyone and say "war, no rules apply".

Might as well, the way the rules are applied.

I remember a US General was being interviewed on TV a few years ago and one of the reporters asked him how they knew that everyone the US killed was a terrorist. The General replied "If we kill someone, then that proves they were a terrorist." So there you go. ipso facto.

Anonymous Coward says:

Personally, I believe that he is not on a US government targeted kill list. However, the government knows that he spends his time talking to terrorists, and he is much easier to track than terrorists are…ergo, they end up bombing wherever he turns up because "Terrists!"

The reason the government invoked the state secrets doctrine is that they don’t want the public and the world to know that they are using US journalists as (unwilling) honey pots to target terrorists. If a journalist happens to be killed, oh well, they shouldn’t actually want to report on news in those inhospitable Middle Eastern areas.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:

You assume that there are enough citizens who recognize what the government is doing to them. There are a couple of sides to that. There are those that are over the top, and maliciously so, anti government, then there are many, many more who have many more cares than what the government is doing to them. At some point, those two ends will find a middle, and hopefully find a peaceful way to ameliorate the situation. If not, there is the Jefferson solution, and he is attributed as a major contributor to the Constitution:

"A true patriot will defend his country from its government."

There is more than one applicable quote at that link.

Personanongrata says:

Life, Liberty and Pursuit of Happiness (HaHa)

DC Court: State Secrets Privilege Trumps Any Citizens’ Right To Know Whether Or Not Their Own Gov’t Is Trying To Kill Them

It is nice to see that federal court jester Rosemary M. Collyer of the DC District Court is upholding her oath to zealously defend the US Constitution in such an unbiased and objective manner while rendering opinions involving life and death.

So much for three separate but co-equal branches of government.

Reaffirmed:

The United States Government is a criminal enterprise.

Anonymous Coward says:

"It’s a cake and eat it too situation for the US government, which can go forward with any other plans it has to deprive other Americans of their due process rights by targeting them for extrajudicial killings."

Rights of non-Americans don’t count apparently? It’s OK for the US government to kill anyone they want?

Scary Devil Monastery (profile) says:

Re: Re:

"Rights of non-Americans don’t count apparently? It’s OK for the US government to kill anyone they want?"

Ironically, no. Constitutional protections also apply when the person in question isn’t a US citizen.

However, the equation comes out differently when that shit goes down in another jurisdiction. That’s why the US drags its dissidents and "terrorist suspects" into places such as Abu Ghraib and Gitmo when they feel the need to torture someone they incarcerated without any sort of due process – or even any reasonable suspicion.

Anonymous Coward says:

Re: Re: Re:

Hell, the government is killing its own citizens EN MASSE. Flouridated water is everywhere. Statin drugs are killing half the male population above 45. The dicks are spraying the atmosphere above us with aluminum oxide, radionuclides, fibreglass nanoparticles. At gunpoint forcing un time tested vaccinations on our kids. Allowing industry to spike lethal ingredients in the food we ingest. Corporations are spraying the most poisonous chemicals on our vegatables. Cell towers every two miles apart… who needs enemies?

Anonymous Coward says:

A Government that can kill you, without judicial oversight, and then have said order or actual killing declared a state secret, never having to be held accountable. A militarized police force where a 2 man sheriff department gets a tank, and machine guns. No knock warrants where a platoon of idiots can knock down your door without any warning, and because they have the wrong address, either end up getting shot as intruders, or killing your whole family. Whole swaths of border areas where your constitutional rights no longer apply.

I don’t identify with the gun nutz, but damn guys, how does any sane American think citizens giving up their rights to bear arms is a good idea? This is terrifying.

Wendy Cockcroft (profile) says:

Re: Re: Re:

Still waiting for the citizens’ uprising to take effect despite the erosion of their constitutional rights. Remember Ferguson? Govt. 1, people nil.

Divide and conquer tactics prevent the groundswell required for a popular revolt. Result: anyone who does rise up is quickly cut down, and the beatings will continue until morale improves. Meanwhile, enablers gonna enable.

Scary Devil Monastery (profile) says:

Re: Re:

"I don’t identify with the gun nutz, but damn guys, how does any sane American think citizens giving up their rights to bear arms is a good idea? This is terrifying."

Simple.

The police are currently armed with outright military weaponry. Sniper rifles, light tanks, antitank and full automatic weaponry, and, of course, an practical immunity to prosecution.

All the second amendment does for you is to enable police to claim a reasonable suspicion that you were armed in order to justify gunning you down like a dog without asking a single question.

It would be good to make americans give up their guns as a whole but until the second amendment and the myth of the gun as the great equalizer goes away…I’d expect to see elves and dragons walking the streets before seeing THAT fantasy realized.

Anonymous Coward says:

I think we will need to agree to disagree. You can’t compare the U.S. with any other country because it’s not like any other country. Our culture, history, and values are unique to us. Historically speaking; When you give our particular government power, they abuse it. As obvious by this very story.

"police seem to me less abusive"

I would normally challenge you on this assertion and request sources. However, because the U.S. is unique, you won’t find any. You can’t compare the U.S. with any other country again because again, it’s not like any other country. I will say this; Our police do not discriminate based on the fact your not carrying a gun/weapon, they kill hundreds of unarmed people every year. You honestly can’t believe that would change with gun control. Look at the history of the U.S. when we’ve tried to ban things. Prohibition and our drug war are two great examples. Both failed, and badly. I would argue both alcohol and drugs kill way more people than guns. One is regulated, the other (until recently) flat out illegal, but still they manage to kill by the thousands?

"So I would want to see some good evidence that it would be worse."

So I would like to see some good evidence that it would be better.

Anonymous Coward says:

Re: Re:

Pure bullshit. What makes this country unique to other countries? Othe citizens have fought hard for the lies and propaganda their governments spewed. People with heart and courage and creativity and muscle have done everything people do all over the planet. It is the powers and principalities at war with each other that is destroying life on earth. It is hopeless. It is only going to get worse.

Anonymous Coward says:

Re: Re:

Our police do not discriminate based on the fact your not carrying a gun/weapon, they kill hundreds of unarmed people every year. You honestly can’t believe that would change with gun control.

So your solution is to let the status quo continue where the police shrug and say "Every civilian probably has a gun, we can’t help but go into every situation with bullets flying"?

Prohibition and our drug war are two great examples. Both failed, and badly. I would argue both alcohol and drugs kill way more people than guns. One is regulated, the other (until recently) flat out illegal, but still they manage to kill by the thousands?

…How is this an argument for less gun control? The amount of actual control in the States is laughable. We have a President who literally thinks managing the access of guns for people with known violent tendencies and issues would not have stopped shooting, and the NRA ate it up as a celebration of the status quo. The two examples you brought up were improved because access to alcohol and drugs are, to a degree, regulated.

What is it about you gun fanatics that any attempt to say "guns should probably not land in the hands of violent people or criminals" suddenly morphs into "the police will rape us without lube if we don’t have guns"? Do you want to sodomize yourselves with your firearms that badly?

nasch (profile) says:

Re: Re:

You honestly can’t believe that would change with gun control.

You’re the one claiming things would change with gun control, not me (maybe – you’re both anonymous so I can’t tell if it’s the same person).

So I would like to see some good evidence that it would be better.

I would like to see where anyone claimed it would be better. I don’t think I’ve ever seen anyone claim that stricter gun control would improve the abusive police issue. I have seen claims that it would make it worse, but I don’t recall any evidence for them.

Scary Devil Monastery (profile) says:

Re: Re:

"You can’t compare the U.S. with any other country because it’s not like any other country. Our culture, history, and values are unique to us."

Not exactly. You’ll find, through history, dozens of countries with much the same origin story as the US. What eventually became the Roman republic being one of the early well-documented examples.

And for a century or two that works. Then it goes to shit and you end up with some form of pompous semi-feudal oligarchy or dictatorship which, umpteen bloody revolutions down the line finally ends up with a sort of hammered out democracy continually balancing on a disaster curve.

But it was roughly 800 years ago that european countries went down the same road the US did, so it can be forgiven if history has been forgotten.

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