< < >

2018 | U.S. DISTRICT COURT OF COLOMBIA Zaidan and Kareem et al v. Donald J. Trump et al, Case no. 17-581 (RMC), Memorandum Opinion, 13 June 2018

Court

U.S. District Court for the District of Columbia

Type   of decision

Memorandum Opinion

Date judgment

13 June 2018

Case no.

17-581 (RMC)

Area of jurisdiction

Civil law

Claim

Plaintiffs’ inclusion on Kill List contravenes U.S. domestic law and human rights treaty obligations.

Principle legal argument(s)

Plaintiffs do not meet the preconditions listed in the Presidential Policy Guidance. Plaintiffs also challenge the lack of notice and opportunity to refute their inclusion   on the Kill List.

Type   of reparation sought

Plaintiffs seek declaratory and injunctive relief under the Administrative Procedure Act, including:

  •  a declaration that the inclusion of plaintiffs Zaidan and Kareem on the Kill List is unlawful and/or is unconstitutional; and/or
  • an injunction   prohibiting their inclusion on the Kill List until they are given the opportunity to challenge their inclusion on this list;
  • an injunction requiring that defendants remove them from any and all lists of persons to be targeted for drone strikes or other killing.

Plaintiffs Ahmad Muaffaq Zaidan –a Pakistani and Syrian citizen- and Bilal Abdul Kareem –a United States (U.S.) citizen- are journalists specialized in reporting on terrorism and conflict in the Middle East. They sue President Donald J. Trump, the Director of the Central Intelligence Agency, the Secretary of the Department of Defense, the Secretary of the Department of Homeland Security, the Attorney General, and the Director of National Intelligence, all in their official capacities, and certain governmental agencies for violating the Administrative Procedure Act (APA)[1]. Plaintiffs claim that defendants acted unlawful when adding plaintiffs’ names to the so-called Kill List and when approving, authorizing and ultimately launching attacks on them. They argue that they do not meet the necessary preconditions for taking lethal action that are listed in the Presidential Policy Guidance (PPG). Plaintiffs also challenge the lack of notice and opportunity to refute their inclusion on the Kill List.

Mr Zaidan’s belief that he could be targeted was based on evidence that he was listed in a U.S. intelligence database called SKYNET, which identified potential terrorists based on their metadata (electronic patterns of communications, writings, social media postings, and travel). He believes that because he was identified as a potential terrorist, he has also been included on the Kill List. Mr Kareem alleges that he has been the near victim of a military strike on five occasions as a result of his inclusion on the Kill List. Plaintiffs seek declaratory and injunctive relief, including:

  • a declaration that the inclusion of plaintiffs on the Kill List is unlawful and/or unconstitutional;
  • an injunction prohibiting their inclusion on the Kill List unless given the opportunity to challenge this inclusion;
  • Removal from any kill list(s).

In order for their claims to survive the government’s motion to dismiss, plaintiffs had to demonstrate that they have legal standing to bring suit and that Congress has waived the government’s sovereign immunity for this type of claim. They also had to contend with the United States’ assertion that the claims are inappropriate for judicial review under the political question doctrine and they failed to state a claim upon which relief may be granted.

Legal Standing

The court explains that legal standing requires, among others, the plaintiff to have suffered an injury in fact that is both (a) concrete and particularized and not merely “conjectural or hypothetical.” (p. 8). Having weighed the facts presented by Mr Zaidan, the court deems his claim, that his name is on a Kill List, too speculative to evince an actual injury and denies him standing to sue (p.11-12). Mr Kareem on the other hand is found to have plausibly alleged his inclusion on the Kill List and thus meets the requirement for an injury-in-fact. Accordingly he is granted standing to sue.

Moreover, bringing a claim against an agency of the United States through its officials requires a waiver of U.S.’ sovereign immunity. Whereas the APA waives such immunity for legal wrong caused by U.S. agency action, defendants claim that “military authority exercised in the field in time of war or in occupied territory” is excluded from the definition as an agency under APA.  The court however was skeptical that the alleged inclusion on the Kill List by those agencies amounts to an exercise of “military authority” The court also expressed doubt that the element “in time of war” was met because the government did not offer an explanation of which war was relevant to activate the exception. Ultimately, the court concludes that it has jurisdiction to solve the case arguing that Mr Kareem seeks to reverse his inclusion on the Kill List which aims at resolving the issue.

Political Question Doctrine

The political question doctrine is primarily a function of the separation of powers; it excludes from judicial review cases revolving around policy choices constitutionally committed for resolution to Congress or the Executive Branch. Having assessed all five counts of the complaint, the court decides that part of the counts indeed raise a non-justiciable political question and must be dismissed. Not blocked from judicial review are the counts asserting Mr Kareem’s rights to due process (the importance of which is emphasized by the court stating that ‘it is a living, breathing concept that protects U.S. persons from overreaching government action even, perhaps, on an occasion of war’) , the right to be heard and his claimed rights under the U.S. Amendment (p. 18-29).

Failure to state a claim

U.S. civil procedure law requires a complaint to contain sufficient factual matter to state a claim for relief that is “plausible on its face”. The court finds that Mr Kareem has met this requirement and denies defendants’ motion to dismiss for failure to state a claim (p. 7, 29).

The Court dismissed Trump as a defendant for technical reasons. In so far the court has denied defendants’ motion to dismiss, the case can proceed unless the decision is appealed or resolved outside the court.


[1] The Administrative Procedure Act governs the process by which federal agencies develop and issue regulations. In addition it addresses other agency actions such as issuance of policy statements and provides standards for judicial review if a person has been adversely affected or aggrieved by an agency action.