1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________ ) AHMAD MUAFFAQ ZAIDAN, et al. , ) ) Plaintiffs, ) ) v. ) ) Civil Action N o. 17-581 (RMC) DONALD J. TRUMP, ) President of the United States, et al. , ) ) Defendants. )

_________________________________ ) MEMORANDUM OPINION Plaintiffs Ahmad Muaffaq Zaida n and Bilal Abdul Kareem are jour nalists who specialize in reporting on terro rism and conflict in the Middle East. Mr. Zaidan learned his name was included on a list of suspect ed terrorists and Mr. Kareem h as been the victim or near victim of at least five aerial bombi ngs while in Syria. Based on this information, the Plaintiffs believe their names are on a list of individuals the United States has determined are terrorists and may be killed (the so-called Kill List ). Plaintiffs sue President Don ald J. Trump, the Director of the Central Intelligence Agency (CI A), the Secretary of the Departm ent of Defense (DOD), the Secretary of the Department of H omeland Security (DHS), the Att orney General, and the Director of National Intelligen ce (DNI), all in their official capacities, as well as the Department of Justice (DOJ), DOD, DHS, and C IA. Plaintiffs allege that th ese officials and agencies violated the Administrative Pr ocedure Act (APA), 5 U.S.C. § 551 , et seq. , by putting Plaintiffs’ names on the Kill List. Defendants move to dismiss for lack of subject-matter jurisdiction, arguing that Plaintiffs lack s tanding and raise a political que stion outside the jurisdiction of the courts. Defendants also move to di smiss for failure to state aclaim upon which relief may be granted. The Court will grant t he Motion to Dismiss in part an d deny it in part.2 I. BACKGROUND The Court takes its facts from the Complaint which the governme nt, at this early stage of the litigation, has not controverted. Mr. Zaidan is aSyrian and Pakistani citizen who has been employed as a journalist by Al Jazeera for over 20 years. Compl. [Dkt. 1] ¶ 3. Mr. Kareem is an American citizen and freel ance journalist, reporting for BBC, Channel 4 in the United Kingdom, CNN, Sky News, and Al Jazeera. Id . ¶ 4. Both Mr. Zaidan and M r. Kareem regularly investigate and report on terro rism and its causes in the Middl e East. Id . ¶¶ 3-4. As part of his reporting, Mr. Zai dan was one of only two journa lists who interviewed Osama bin Laden prio r to the attacks on September 1 1, 2001. Id . ¶ 3. Mr. Zaidan was not involved in planning the 9/11 attack or a ny other attac k. Id . ¶¶ 20-21. He has no association with Al-Qaeda or the Taliban and poses no threat to the United States or its citizens. Id . ¶¶ 22-23. Mr. Zaidan’s work does, however, require him to co mmunicate frequently “with sources who have connections [to] terrorists and their associat es” and to travel in countries where terrorists are active. Id . ¶ 26. In addition to bin Laden, Mr. Zaidan has interviewed o ther terrorist leaders suc h as Baitullah Mehsud of the Tehreek-e Tal iban-e Pakistan (Taliban Movement of Pakistan) and Abu Moha mmad al-Jolani of the Al Nusr a Front. Id . ¶¶ 30-31. In 2015, Mr. Zaidan traveled in Syria reporting on battles of the Free Syrian Army; as a result, he says that he was listed on Syria n State Television as a member of Al-Qaeda. Id . ¶ 32. Mr. Zaidan alleges on information and b elief that his actions as a journalist caused him to be listed in a U.S. intelligence document ca lled SKYNET, which identified po tential terrorists based on their metadata (electronic patterns of communications, writings, soci al media postings, and travel). Id . ¶ 33. He believes that because he was identified by SKYNET a s a potential terrorist, he has also been included on the Kill Li st, allowing him to be targete d and killed. Id . ¶ 35.3 Similarly, Mr. Kareem has no associ ation with Al-Qaeda or the T aliban, has never participated in the planning of a terrorist attack, and has nev er aided any organization or individual which enga ges in terrorism. Id . ¶¶ 40-42. He is currently employed by On the Ground Network (OGN) and tasked w ith investigative journalistic coverage of the anti-Assad rebels in Syria. Id . ¶ 45. This work involves inter actions with “local ‘militants ’ during interviews.” Id . In June 2016, Mr. Kareem was at the location of four differe nt aerial attacks. Id . ¶¶ 47-50. The first and fourth incidents involved strikes to the OGN office in Idlib City when Mr. Kareem was inside the office. Id . ¶¶ 47, 50. The second attack o ccurred in the town of Hariyataan while Mr. Kareem was there conducting an interview. Id . ¶ 48. The strike hit the exact location where Mr. Kareem was setting up for the intervie w, but at the time of the strike he had climbed a nearby hill to “view destroyed homes a street awa y.” Id . The third attack occurred when the vehicle in whi ch Mr. Kareem and his staff wer e traveling was “struck and destroyed by a drone-launched Hellfire missile.” Id . ¶ 49. At the time of the strike, Mr. Kareem was sitting in a different, near by vehicle which was “hurled in to the air by the force of the blast” and “flipped upside down.” Id . In August 2016, Mr. Kareem was aga in the victim of an attack when he was at the Kulliyatul M idfa‘iyyah (Artillery College) t o film. Id . ¶ 51. He and his coworkers were in his car “when t here was a huge blast only yar ds away from the car.” Id . The occupants survived, but all were hit by shrapnel from the blast

. Id . As a result of these five near-miss experiences in a th ree-month period, Mr. Kareem alleg es upon information and belief that he was the target and tha t his name is included on the Uni ted States Kill List. Id . ¶ 52. According to the Complaint, the United States has publically di sclosed that it “conducts lethal strikes target ed at individuals, using remotel y piloted aircraft, among other weapons, and that targets are selected . . . as a result of a ‘ process’ in which targets are4 nominated by one or more defenda nts, and their inclusion on the Kill List is confirmed through a series of meetings and discussions among defendants.” Id . ¶ 55. Then-President Barack H. Obama issued the Presiden tial Policy Guidance on May 22, 2013, which delineated guidelines and provided for oversight and accountability in the process of designating individuals for the Kill List. Id . ¶ 57; see also Procedures for Approving Direct Action Against Terrorist Targe ts Located Outside the United State s and Areas of Active Hostiliti es (May 22, 2013), https://www.aclu.org/sites/defaul t/files/field_document/preside ntial_policy_guidance.pdf (Presidential Policy Guidan ce). On August 6, 2016, the Preside ntial Policy Guidance was made public. Id . ¶ 58. It includes guidance on de signating individuals based only on metadata (or without knowing their identities) , as well as the “necessary pr econditions for taking lethal action.” Id . ¶¶ 61, 63. Plaintiffs allege that Defendant s violated the APA when Defenda nts added Plaintiffs’ names to the so-cal led Kill List because Plaintiffs do not meet the preconditions listed in the Presidential Policy Guidance. Id . ¶ 64. Plaintiffs also challeng e the lack of notice and opportunity to refute their in clusion on the Kill List. Id . ¶ 65. The Complaint advances six counts under the APA: Count One: Inclusion of Plaintiffs on the Kill List was arbitr ary, capricious and an abuse of discretion. Count Two: Inclusion of Plaintiffs on the Kill List was not in accord with law because it (1) “viola tes the prohibiti on on conspiring to or assassinating any person abroad contained in Executive Order 12,333”; (2) “violates the prohibition against war crimes conta ined in 18 U.S.C. § 2441 because it constitutes a grave breach of co mmon article 3 of the Geneva Conventions as specified in 18 U.S.C. § 2441(c)(3)”; (3) “viola tes Article 6 of the International Cov enant on Civil and Political Rights”; and (4) “violates 18 U.S.C. § 956(a)(1).” Count Three: Inclusion of Plaintiffs on the Kill List exceeded Defendants’ statutory authority “b ecause it exceeds the authori ty5 given to the Executive pursuant t o the Authorization for the Us e of Military Force.” Count Four: Inclusion of Plaintiffs on the Kill List violated due process because Plaintiffs wer e provided no notice and given no opportunity to challe nge their inclusion. Count Five: Inclusion of Plaintiffs on the Kill List violated the First Amendment because it “has the effect of restricting and inhibit ing their exercise of free speech and their ability to function as journalists entitled to f reedom of the press.” Count Six (only as to Mr. Kareem): Inclusion of Plaintiff on t he Kill List violated the Fourth and Fifth Amendments because it constituted an illegal seizure and “seeks to deprive [Mr. Karee m] of life without due pr ocess of law.” Id . ¶¶ 70, 72-76, 78, 82-83, 85, 90-91. In the present posture o f the case, the Court must accept all plausible factual allegati ons in the Complaint as true. See Barr v. Clinton , 370 F.3d 1196, 1199 (D.C. Cir. 2004). On June 5, 2017, Defendants moved to dismiss. Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss (Mot.) [Dkt. 8-1]. Plaintiffs opposed. Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss (Opp’n) [ Dkt. 10]. Defendants replied. Defs.’ Reply Mem. in Supp. of Their Mot. to Dismiss (Reply) [Dkt. 11]. The Court heard oral argument on May 1, 2018.
II. LEGAL STANDARDS A. Motion to Dismiss – Fed. R. Civ. P. 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move to dismiss a complaint, or any portion thereof , for lack of subject-matter j urisdiction. Fed. R. Civ. P. 12(b)(1). No action of the partie s can confer subject-matter j urisdiction on a federal court because subject-matter jurisdiction is both a statutory require ment and an Article III requirement. Akinseye v. District of Columbia , 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject-matter jurisdiction bear s the burden of demonstrating t hat such jurisdiction exists. Khadr6 v. United States , 529 F.3d 1112, 1115 (D.C. Cir. 2008); see Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994) (noting that federal courts are cour ts of limited jurisdiction and “[i]t is to be presumed that a cause lies outside this limited jurisdiction, an d the burden of establishing the contrary rests upon the party a sserting jurisd iction”). When reviewing a motion to dismi ss for lack of jurisdiction und er Rule 12(b)(1), a court must review the compla int liberally, granting the plain tiff the benefit of all inferences that can be derived from the facts alleged. Barr , 370 F.3d at 1199. Nevertheless, “the Court need not accept factual inferences drawn by plaintiffs if those inferenc es are not supported by facts alleged in the complaint, nor must the Court accept plaintiffs’ legal conclusions.” Speelman v. United States , 461 F. Supp. 2d 71, 73 (D.D.C. 2006). A court may consider m aterials outside the pleadings to determin e its jurisdiction. Settles v. U.S. Parole Comm’n , 429 F.3d 1098, 1107 (D.C. Cir. 2005); Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003). A court has “broad discreti on to consider r elevant and competent evidence” to resolve factual issues raised by a Rule 12(b)(1) motion. Finca Santa Elena, Inc. v. U.S. Army Corps of Eng’rs , 873 F. Supp. 2d 363, 368 (D.D.C. 2012) (citing 5B Charles Wri ght & Arthur Miller, Fed. Prac. & Pro., Civil § 1350 (3d ed. 2004)); see also Macharia v. United States , 238 F. Supp. 2d 13, 20 (D.D.C. 2002), aff’d , 334 F.3d 61 (2003) (in reviewing a f actual challenge to the truthfulness of the allegations i n a complaint, a court may exa mine testimony and affidavits). In such circumstances, consideration of documents outside the plea dings does not convert the motion to dismiss into one for summary judgment. Al-Owhali v. Ashcroft , 279 F. Supp. 2d 13, 21 (D.D.C. 2003).
B. Motion to Dismiss – Fed. R. Civ. P. 12(b)(6) Federal Rule of Civil Procedure 12(b)(6) requires a complaint t o be sufficient “to give the defendant fair notice of what the claim is and the gro unds upon which it rests.” Bell Atl.7 Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal citations omitted). Altho ugh a complaint does not need to include detaile d factual allegations, a plaint iff’s obligation to provide the grounds of his entitlement to relie f “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. The facts alleged “must be enough to raise a right to relief above the speculative level.” Id . A complaint must contain sufficient factual matter to state a claim for relief that is “ plausible on its face.” Id. at 570. When a plaintiff pleads factual c ontent that allows the court t o draw the reasonable inference that the defendant is liable for the misconduct alleged, then the cl aim has facial plausibility. See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). “The plausibi lity standard is not akin to a probability requirement, but it asks for more than a sheer poss ibility that a defe ndant has acted unlawfully.” Id . A court must treat the complai nt’s factual allegations as tr ue, “even if doubtful in fact.” Twombly , 550 U.S. at 555. A court need not accept as true legal concl usions set forth in a complaint. Iqbal , 556 U.S. at 678.
III. ANALYSIS Defendants provide three alter native arguments to support their motion to dismiss. First, they argue the Court lack s subject-matter jurisdiction “ because Plaintiffs have not alleged sufficient facts to establish t hat they have standing to bring their lawsuit.” Mot. at 1. Second, they argue that the Court lack s subject-matter jurisdiction bec ause Plaintiffs raise a political question that would require the Court “to probe into sensitive and complex national security decisions.” Id . at 2. Finally, they move to di smiss under Rule 12(b)(6), arg uing that Plaintiffs have failed to state a claimupon which relief may be granted b ecause they “have not pled sufficient facts to establish t hat the alleged unlawful actions have even occurred.” Id . The Court will address each argument in turn.8 A. Subject-Matter Jurisdiction 1. Standing Standing is part and parcel of A rticle III’s limitation on the judicial power of the federal courts, which extends only to cases or controversies. U.S. Const. art. III, § 2 (“The judicial Power shall extend t o all Cases, in Law and Equity, ar ising under this Constitution, the Laws of the United States, and Tre aties made, or which shall be made, under their Authority [and] to Controversies . . . .”); see also Ariz. State Legislature v. Ariz. Indep. Redistricting
Comm’n , 135 S. Ct. 2652, 2663 (2015). The stric tures of Article III standing are by now “familiar.” United States v. Windsor , 133 S. Ct. 2675, 2685 (2013). Standing requires (1) the plaintiff to have suffered an inj ury in fact that is both (a) c oncrete and particularized and (b) actual or imminent, as opposed t o conjectural or hypothetical; (2) the injury must be traceable to the defendants’ actions; and (3) the injury must be redressable by a favorable decision of the

court. See id . at 2685-86 (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 559-62 (1992)). A federal court must assure itself of both constitutional and s tatutory subjectmatter jurisdiction. The former obtains if the case is one “ar ising under this Constitution, the Laws of the United States, and Tre aties made, or which shall be made, under their Authority.” U.S. Const. art. III, § 2. The re levant statute, 28 U.S.C. § 1 331, likewise confers jurisdiction upon lower courts to hear “all ci vil actions arising under the Constitution, laws, or treaties of the United States.” Federal courts have constitutional and statuto ry “arising under” jurisdiction whenever a plaintiff’s claim “will be sustained if the Constitu tion is given one construction and will be defeated if itis given another.” Powell v. McCormack , 395 U.S. 486, 514-16 (1969) (citing Bell v. Hood , 327 U.S. 678, 685 (1946); King Cnty. v. Seattle Sch. Dist. No. 1 , 263 U.S. 361, 363-64 (1923)).9 Injury-in-fact A plaintiff must allege an injury-in-fact that is (a) concrete and particularized and (b) actual or imminent, not c onjectural or hypothetical. See Windsor , 133 S. Ct. at 2685 (citing Lujan , 504 U.S. at 559-62). Allegations of speculative or possible future injury do not satisfy the requirements of Article III. “A threatened injury must be cert ainly impending to constitute injury in fact.” Whitmore v. Arkansas , 495 U.S. 149, 158 (1990). When an alleged injury has not yet occurred, courts must determ ine whether it is imminent. Clapper v. Amnesty Int’l USA , 568 U.S. 398, 409 (2013). An injury is imminent if the threatened injury is “certainly impending” or if there is s ubstantial risk that the harm will

occur. Id . “[P]laintiffs bear the burde n of pleading . . . concrete fac ts showing that the defendant’s actual action has caused the substantial risk of ha rm. Plaintiffs cannot rely on speculation about the unfettered choices made by independent ac tors not before the court.” Id . at 414 n.5 (internal quotations and citation omitted). Defendants argue that both Plaintiffs fail to meet the “injury- in-fact” prerequisite for standing because none of the factual allegations demonstrat es that they have suffered harm or that there is a substantial risk of future harm. Defendants co ntend that none of Plaintiffs’ allegations—the inclusion of Mr . Zaidan’s name on SKYNET or Mr. Kareem’s repeated nearmiss incidents—indicates that either Plaintiff is actually on the Kill List, which Defendants appear to concede would itself constitute harm or demonstrate a substantial risk of future harm.
See Mot. at 3-11. i. Mr. Zaidan lacks standing to sue. Mr. Zaidan asserts, upon information and belief, that his name is on the Kill List because of the nature of his metadata, that is (1) as part of h is job as a journalist he10 communicates frequently with i ndividuals who have connections t o terrorists, (2) his social media accounts contain words a nd phrases associated with terror ism, and (3) he has interviewed leaders of al-Qaeda and the Ta liban and other terrorist organiz ations, which caused him to be identified as a potential t arget by SKYNET, an allegedly classified U.S. intelligence document. Compl. ¶¶ 26-34. Defendants argue that Mr. Zai dan cannot rely on a purportedly c lassified document (SKYNET), despite its av ailability in the public domai n on the Internet. They cite Alfred A. Knopf, Inc. v. Colby for this propositio n. 509 F.2d 1362, 1370 (4th Cir. 1975), cert. denied , 421 U.S. 992 (1975). Defendants over-read Knopf , a case in which former government employees challenged deletions r equired by the CIA of informati on in their proposed book. See id . at 1365. Knopf evaluated the impact of the then- newly adopted Freedom of Infor mation Act (FOIA), 5 U.S.C. § 552, on EPA v. Mink , 410 U.S. 73 (1972), which had held that “executive decisions respecting the class ifying of information are not sub ject to judicial review.” Knopf, 509 F.2d at 1367. “The legislative history [of FOIA] makes it clear that the Congress intended to overthrow the result of Mink .” Id. In that context, the Fourth Cir cuit reversed the District Cou rt for having imposed too high a bur den on the government to prove the classified status of the deleted materials. Id. at 1370. It then held that “i ndividuals bound by the secrecy agreements [as part of their government employm ent] may not disclose informati on, still classified, learned by them during their employments regardless of what they may learn or might learn thereafter.” Id. at 1371. Knopf further held that such secrecy obl igations continue as to clas sified information even if revealed by a non-official source after the person’s go vernment employment has ended. Id . Defendants do not suggest that Mr. Zaidan learned of SKYNET as part of employment with the United States government or t hat he is, therefore, prohibit ed from disclosing any information11 concerning it. To the contrary, Mr . Zaidan alleges that some i nformation from SKYNET was publicized by unknown persons on the I nternet and it included h is name as prime among persons whose metadata caused them to be suspected of terrorist activit ies. That information, whether or not classified, may be cited by P laintiffs although its weight may be subject to attack. The Complaint alleges that “De fendants’ false classification of plaintiff Zaidan as a terrorist, based on SKYNET’s me tadata analysis, has prompted defendants to place him on their Kill List and target hi m to be killed.” Compl. ¶ 35. De fendants insist that even if Mr. Zaidan’s name is on a SKYNET list of “potential terrorists,” he has failed to allege adequately a link between SKYNET and the Kill List. This point is well take n. When reviewing a motion to dismiss, a court must assume that all plausible factual allegat ions are true; nonetheless, the alleged injury cannot be “c onjectural or hypothetical.” Lujan , 504 U.S. at 560; see also Twombly , 550 U.S. at 555 (“Factual allega tions must be enough to raise a right to relief above the speculative level.”). Theref ore, the Court assumes the acc uracy of Mr. Zaidan’s allegations that he is a journalist who re gularly meets with individuals ti ed to terrorists, that he has interviewed terrori st leaders, and that he found his name on a SKYNET list of potential terrorists. These facts, however , are not sufficient to allege plausibly that his name is on a U.S. Kill List; that conclusion is mere speculation presented as a f act. As did the plaintiffs in Clapper v. Amnesty International USA , Mr. Zaidan presents a list of f actual allegations that is too attenuated from the final n ecessary allegation. 568 U.S. at 41 0-11. In other words, while Mr. Zaidan would not need to plead with certainty or have actual pr oof that his name is on a Kill List, his current allegations would req uire the Court to find that it is plausible that every individual whose name is on the SKYNET list of potential terrorists is als o on a Kill List, for which there is no evidence of fact or logic. T o the contrary, Mr. Zaidan does not allege that a s ingle individual12 on the SKYNET list has been the s ubject of a United States dron e strike or targeted for lethal action. While it is possible that there is a co rrelation betwe en a list like SKYNET and the Kill List, the Court finds no allegatio ns in the Complaint that rais e that possibility above mere speculation. Accordingly, the C ourt finds Mr. Zaidan has faile d to allege a plausible injury-infact and therefore has no standing to sue. 1 Because the Court concludes that Mr. Zaidan has no standing to pursue his lawsuit, the remaining arguments will be analyzed only as they pertain to
Mr. Kareem. ii. Mr. Kareem has demonstrated standing. Mr. Kareem alleges that he is on the Kill List because he was t he victim of five near-miss attacks within a t hree-month period in 2016. Two of the attacks invol ved his place of work, one involved his own vehicl e, one involved a work vehicle in which he had been traveling immediately before, and one hit a location from which he had ju st walked away. See Compl. ¶¶ 46-51. Defendants argue that Mr. Kareem was on “battlefield s in Syria” and that he merely alleges “he has sustained or narro wly escaped war-related injur ies.” Mot. at 8. Even assuming the facts of the attacks are true , Defendants argue that Mr. Ka reem has provided no reason to believe they are “attributable t o anything more than a journali st reporting from a dangerous and active battlefield.” Id . Defendants ask the Court to c onsider independent sources whi ch conclude that Syria is a volatile place where forces from multi ple countries and groups engage in

1 The Opposition argues that a “disposition matrix” reported by the Washington Post indicates that an individual’s inclusion on t he SKYNET list could lead to results other than death, such as capture and interrogation or rendition. Opp’n at 11 n.4. The news article constitutes inadmissible hearsay and cannot be relied upon in analyzing Mr. Zaidan’s injury. The Complaint does not allege or challenge Mr. Z aidan’s inclusion on a list o f potential terrorists that the United States seeks to capture but only inclusion on the Kill List.13 hostilities and attacks, making implausible Mr. Kareem’s allega tions that the attacks he suffered were at the hands of the United States and not other combatants

. Mr. Kareem alleges that the United States engages in targeted d rone strikes, 2 that he has been the near victim of a military strike on five occasi ons (at least one of which included the use of a drone), and that he is a journalist who is often i n contact with rebel or terrorist organizations. Compl. ¶¶ 44-52, 55-59. Accepting all well-ple d allegations as true, Mr. Kareem has plausibly alleged that he was in 2016 a target on the Kill List with evidence that makes it “more than a sheer possibility.” Iqbal , 556 U.S. at 678. Although Defendants set forth other plausible alternatives, such as the fact that Mr. Kareem could have been targeted by Syria for reporting on anti-Assad efforts , their argument does not make i t implausible that the attacks were a result of U.S. action; at oral argument, Defendants conceded that Mr. Kareem specifies that at least one of the strikes was from a Hellfire missile of the kin d used by the U.S. without identifying the other weapons to the contrary. The Court concl udes that Mr. Kareem has adequately pled injury-in-fact. 3
Causation Causation is the second element of standing and is just as crit ical as injury-in-fact. Causation requires “a causal c onnection between the injury and the conduct complained of.” Lujan , 504 U.S. at 560. The harm alleged must be “fairly traceable to the challenged action of

2 See, e.g., Al-Aulaqi v. Panetta , 35 F. Supp. 3d 56 (D.D.C. 2014); Al-Aulaqi v. Obama , 727 F. Supp. 2d 1 (D.D.C. 2010).

3 Since the Complaint alleges that Mr. Kareem was on the U.S. Ki ll List in 2016 but was not killed, it posits that his danger continues to the present time . Having filed a motion to dismiss based solely on legal arguments, the government makes no factua l argument to the contrary.14 the defendant, and not the result of the independent action of some third party not before the court.” Bennett v. Spear , 520 U.S. 154, 167 (1997). Defendants do not directly rebut Mr. Kareem’s allegations of ca usation, but do argue that “the more plausible e xplanation” for Mr. Kareem’s na rrow escapes from injury in five different strikes “is that he has chosen to work as a journalis t in a country rife with violence and warfare.” Reply at 8. Twombly and Iqbaldo not, however, require a plaintiff to allege the most plausible set of facts, but merely a plausible set of facts. See Twombly , 550 U.S. at 556 (“Asking for plausible grounds to infer an agreement does not impose a p robability requirement at the pleading stage; it simply calls for enough fact to raise a reas onable expectation that discovery will reveal evidence of illegal agreement.”). While it is plau sible that Mr. Kareem is not being targeted by the United States, it is also plausible that Mr. Ka reem’s multiple near-miss incidents were caused by Defendants’ decision to include him on the Kill List and were, therefore, caused by Defendants’ actions. Probability is not the standard on a m otion to dismiss. Redressability The last element of standing is redressability, requiring that it “be likely, as opposed to merely speculative, tha t the injury will be redresse d by a favorable decision.” Lujan , 504 U.S. at 561 (internal quota tions and citation omitted); see also In re Sci. Applications Int’l Corp. (SAIC) Backup Take Data Theft Litig. , 45 F. Supp. 3d 14, 33 (D.D.C. 2014). Defendants make no arguments regarding redressability and thus the matter is conceded. The Court finds that if Mr. Kareem succeeds in this case his injury can be redr essed through an injunction or order from this Court requiring, at the least, that the United States review and consider his evidence before it directs lethal force against him.15 2. Sovereign Immunity There must be a valid waiver of t he United States’ sovereign im munity for Mr. Kareem to bring claims against a n agency of the United States t hrough its officials, as he does here. See, e.g. , Block v. North Dakota , 461 U.S. 273, 287 (1983) (“The basi c rule of federal sovereign immunity is that the U nited States cannot be sued at all without the consent of Congress.”). Naming the heads of agencies as defendants in the ir official capacities results in a lawsuit against the United States. See Kentucky v. Graham , 473 U.S. 159, 165-66 (1985) (“Official-capacity suits, in c ontrast, ‘generally represent on ly another way of pleading an action against an entity of which an o fficer is an agent.’” (quoting Monell v. New York City Dep’t of Social Servs. , 436 U.S. 658, 690 n.55 (1978))). The principles of sovereign immunity apply equally to federal agencies, o fficers, and employees acting in their official capacities. See FDIC v. Meyer , 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunit y shields the Federal Government and its agencies from suit.”); Kentucky v. Graham , 473 U.S. 159, 165-66 (1985). The United States’ exemption fro m suit is expressed in jurisdic tional terms—that is, federal courts lack subject-matter juri sdiction over suits against the United States in the absence of a clear waiver of sovereign immunity. See, e.g. , Jackson v. Bush , 448 F. Supp. 2d 198, 200 (D.D.C. 2006) (“[A] plaintiff mu st overcome the defense of sove reign immunity in order to establish the jurisd iction necessary to survive a Rule 12(b)(1) motion to dismiss.”). Statutes that waive sovereign immunity are strictly construed and any doubt o r ambiguity is resolved in favor of immunity. Lane v. Pena , 518 U.S. 187, 192 (1996). The Complaint advances multiple claims by Mr. Kareem based on t he APA. That statute waives the government’s s overeign immunity from suit fo r individuals “suffering legal wrong because of agency action, or adversely affected or aggrie ved by agency action within the16 meaning of a relevant statut e.” 5 U.S.C. § 702 (“The United St ates may be named as a defendant in any such action, and a judgmen t or decree may be entered aga inst the United States.”). APA review is precluded if an applicab le statute bars judicial revi ew, if the “agency action is committed to agency discretion by law,” or if the entity sued i s exempt from the APA’s definition of agency in § 701(b)(1). Id . § 701(a), (b)(1). To begin, the Court will dismiss a ll claims against President T rump because the President is not an agency w ithin the meaning of the APA. See Dalton v. Specter , 511 U.S. 462, 467-68 (1994) (“[T]he APA does notapply to the President.”); Franklin v. Massachusetts , 505 U.S. 788, 796-801 (1992). Defendants argue that all of Mr. Kareem’s claims must be dismis sed because “military authority exercised in the field in time of war or in occupied territory” is exempt from the definition of agency acti on in the APA. 5 U.S.C. § 701(b)( 1)(G). These arguments may prove applicable, but Defendants fail to demonstrate at this po int that the challenged action took place “in the field in time of war.” The action at issue is the alle ged decision of the United State s to place Mr. Kareem on the Kill List. The Complaint alleges that this decis ion was made in the manner dictated by the Presidential Poli cy Guidance, whereby it was di scussed, debated, and decided in Washington, D.C. Thus, while e xecution of such a decision woul d be an exercise of military authority in the field, the Comp laint plausibly argues that the decision itself was made by authorities who were not “in the f ield” as required for the APA exemption to apply. Further, Defendants fail to ide ntify the war in w hich the Unite d States is or was engaged and relegate the argumen t to a single sentence in a foo tnote. Somewhat contrary to this semi-argument, Defendants also repeatedly argue in brief and at oral argument that the conflict17 in Syria is an internal civil war among Syrians, in which the U nited States merely provides military assistance. See Mot. at 9. From the former perspective, Defendants insist tha t the APA does not apply due to this “time of war,” while from the latter , Defendants assert that the United States has such a limited military presence in Syria it is not plausible the attacks against Mr. Kareem were the result of U.S. action. Of course, a non-tradit ional war can be a “time of war” exempt from APA coverage, but De fendants fail to identify the w ar at issue. See Anderson v.
Carter , 802 F.3d 4, 8-9 (D.C. Cir. 2015) (fi nding that “hostilities m ay subsist between two nations on a limited basis, whic h would [once] be properly term ed [an] imperfect war” and is now called an “undeclared war”); Doe v. Rumsfeld , 297 F. Supp. 2d 119, 129 (D.D.C. 2003) (finding judicial review permi ssible of order that military sub mit to anthrax vaccine because, in part, “the order . . . was give n by the Secretary of Defense, n ot by commanders in the field”); Jaffee v. United States , 592 F.2d 712, 719-20 (3d Cir. 1979) (que stioning whether acti ons taken in the United States during the K orean War could be considered “in the field”); Rosner v. United
States , 231 F. Supp. 2d 1202, 1217-18 (S.D. Fla. 2002) (allowing disc overy on whether APA’s exception of “military authority” from court review applied to the Army’s seizure of property expropriated by the Hungarian gover nment during World War II). The Court does not close its eyes to the fact that the U.S. military is engaged in warfare i n Syria and elsewhere, but Defendants fail to use such terms. This may seem like a foolis h requirement under the circumstances, but it pert ains by statute nonetheless. The undeveloped facts and legal a rguments presented by Defendan ts are insufficient to prompt dismissal of Mr. Kareem’s Complaint. De fendants do not disavow the Presidential Policy Guidance or its applicability to any decisi on in 2016 or earlier to put Mr. Kareem’s name on the Kill List, as he alleges. The Presidentia l Policy Guidance supports his18 argument that the relevant decisions are made far from the fiel d of battle. Mr. Kareem complains of an alleged decision to authorize a lethal strike against him and not a decision in the field to attempt to carry out that authorization. He wants the opportun ity to persuade his government that he is not a terrorist or a threat so that the alleged auth orization to kill is rescinded. This legal approach to resolving the issue has previously been recommended by this District Court and sustained on appeal. See El-Shifa Pharm. Indus. Co. v. United States , 607 F.3d 836, 842 (D.C. Cir. 2010) ( en banc ); bin Ali Jaber v. United States , 861 F.3d 241, 246 (D.C. Cir. 2017).
3. Political Question Finally, Defendants urge the Cour t to find that there is no jud icial role here because Mr. Kareem’s Complaint r aises a political question for which the Judiciary is illequipped to rule. “The politic al question doctrine excludes fr om judicial review those controversies which revolve a round policy choices and value det erminations constitutionally committed for resolution to the halls of Congress or the confin es of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y , 478 U.S. 221, 230 (1986). The doctrine is “primarily a function of the separation of powers.” Baker v. Carr , 369 U.S. 186, 210 (1962). However, “[i]t is emphatically t he province and duty of the jud icial department to say what the law is,” Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177 (1803), and the political question doctrine’s “shifting c ontours and uncertain underpinni ngs” make it “susceptible to indiscriminate and overbroad appl ication to claims properly bef ore the federal courts,” Ramirez de Arellano v. Weinberger , 745 F.2d 1500, 1514 (D.C. Cir. 1984) ( en banc ), vacated on other grounds , 471 U.S. 1113 (1985). “The political question doctrine has o ccupied a more limited place in the Supreme Court’s jurisprudence than is sometimes as sumed. The Court has relied on19 the doctrine only twice in the last 50 years.” El-Shifa , 607 F.3d at 856 (Kavanaugh, J., concurring in judgment). When evaluating whether an iss ue involves a political question, courts consider a number of factors; the presenc e of one such factor is sufficien t to find a political question. Schneider v. Kissinger , 412 F.3d 190, 194 (D.C. Cir. 2005). A court considers whethe r the case presents: [1] a textually demonstrable cons titutional commitment of the i ssue to a coordinate political department; or [2] a lack of judicial ly discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without a n initial policy determinati on of a kind clearly for nonjudicial dis cretion; or [4] the impossibi lity of a court’s undertaking independe nt resolution without expressing lack of respect due coordinate branches of government; or [5] a n unusual need for unquestioning adherence to a political decisio n already made; or [6] the potentiality of embarrassment of multifarious pronouncements by various departments on one question. Baker , 369 U.S. at 217. The government focuses on the first two Baker factors and argues that the decision of whether to targe t an individual for lethal acti on is a wartime decision that is committed to the executive with no judicially manageable standa rd for review. Mr. Kareem argues that this case is most similar to People’s Mojahedin Organizatio n v. Department of State , 182 F.3d 17 (D.C. Cir. 1999), which con cerned a challenge to th e State Department’s identification of the People’s Mo jahedin Organization as a terr orist organization. The D.C. Circuit found that the question w as subject to judicial review because the Antiterrorism and Effective Death Penalty A ct of 1996 (AEDPA), 8 U.S.C. § 1189, s pecified the standards to apply. Id. at 113. Mr. Kareem urges the Cour t to find that it can evalua te the decision to include Mr. Kareem on the Kill List just as courts evaluate a decision to label an organization as a terrorist organization under AEDPA.20 Judges on this Court have strugg led before with these issues in analogous contexts. Judge John Bates decide d that Nasser al-Aulaqi, fath er of terrorist Anwar al-Aulaqi, did not have standing to sue the U nited States to prevent it fr om targeting his son with a drone strike. Al-Aulaqi v. Obama , 727 F. Supp. 2d 1 (D.D.C. 2010) ( al-Aulaqi I ). In discussing the difficulty of the issues, Judge Bat es asked: “How is it that j udicial approval i s required when the United States decides to target a U.S. citizen overseas for ele ctronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when t he United States decides to target a U.S. citizen overseas for death?” Id . at 8. Nonetheless, he agreed tha t “[t]he difficulty that U.S

. courts would encounter if they wer e tasked with ‘ascertaining t he “facts” of military decisions exercised thousands of miles from the forum, lies at the heart of the determination whether the question posed is a “political” one.’” Id . at 45 (quoting DaCosta v. Laird , 471 F.2d 1146, 1148 (2d Cir. 1973)). Judge Bates then concluded, with some discomf iture, “that there are circumstances in which the Ex ecutive’s unilateral decision to k ill a U.S. citizen overseas” is “judicially unreviewable.” Id . at 51. Finding such a circumsta nce presented in that case, J udge Bates dismissed Nasser al-Aulaqi’s suit. After “the United States inten tionally targeted a nd killed [Anw ar al-Aulaqi] with a drone strike in Yemen on September 30, 2011,” “[b]ecause [he] was a terrorist leader of al Qa’ida in the Arabian Peninsula ,” Nasser al-Aulaqi sued various U.S. persons, under a Bivens theory of liability, in a separ ate case before this Judge. Al-Aulaqi v. Panetta , 35 F. Supp. 3d 56, 58 (D.D.C. 2014) ( al-Aulaqi II ); see also Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 389 (1971). “It was al- Aulaqi’s actions—and, i n particular, his direct personal involvement i n the continued planning and execu tion of terrorist attacks against the U.S. homeland—that led the United States to take action.” Al-Aulaqi II , 35 F. Supp. 3d at 6421 (citing a letter from then-Attorn ey General Holder) (internal c itation omitted). The question presented was whether “federal officials can be held personallyliable for their roles in drone strikes abroad that target a nd kill U.S. citizens. The questio n raise[d] fundamental issues regarding constitutional principles.” Id . at 58. The Court in al-Aulaqi IIfound Nasser alAulaqi’s second case to be just iciable “[b]ecause Plaintiffs . . . pointedly allege[d] that Defendants, U.S. officials, int entionally targe ted and killed U .S. citizens abroad without due process . . . .” Id . at 70. Al-Aulaqi II was ultimately dismissed after the undersigned declined to extend Bivens into new territory. Neither of the al-Aulaqi cases bears direc tly on the instant Complaint. Judge Bates read the complaint in al-Aulaqi I as asking him to determin e the facts and judge the legitimacy of military decisions made thousands of miles away, which is not the case here. AlAulaqi II is similarly distinguishable becau se Nasser al-Aulaqi attempte d to extend Bivens

— allowing challenges to federal actors on constitutional grounds —beyond its grasp. It remains a truism that judges are not good judges of military decisions du ring war. The immediate Complaint asks for no such non-judi cial feat; rath er, it allege s that placement on the Kill List occurs only after nomination by a defense agency principal and agreement by other such principals, with prior notice t o the President. The persons al leged to have exercised this authority are alleged to have followed a known procedure that o ccurred in Washington or its environs. With this combination of precedents in mind, the Court will eva luate each Count to determine if it presents a pol itical question that is not fo r judicial review.22 Count One – Agency action was arbitrary and capricious, and an abuse of discretion Count One asks the Court to exami ne whether the defense agencie s allegedly involved in the decision to place Mr. Kareem on the Kill List c omplied with the process set out in Section Three of the Preside ntial Policy Guidance: the “pol icy standard and procedure for designating identified HVTs [high value targets] for lethal act ion.” Presidential Policy Guidance at 11. The Court finds that the Presidential Policy Guidance f ails to provide a judicially manageable standard. AEDPA, on which People’s Mojahedin rested, requires a series of formal findings that an organization meets cert ain criteria before it can be la beled an international terrorist organization: “(A) the organiza tion is a foreign organization” ; “(B) the organization engages in terrorist activity” as defined i n AEDPA; and “(C) the terrorist activity of the organization threatens the security of United States nationals or the nation al security of the United States.” 8 U.S.C. § 1189(a)(1). In direct contrast, the Presidential Poli cy Guidance provides no test or standard that must be satisfied before the government may add a n individual (known or unknown) to the Kill List; it only specifies the steps and proc esses that the relevant defense agencies must complete. See Presidential Policy Guidance at 11-14. When an individual who is not a U.S. person is proposed for lethal action, and the princi pals of the relevant defense agencies unanimously decide that lethal action should be taken, the prin cipal of the nominating agency may approve lethal action after prior notice to the President. Id . at 14 § 3.E.1. When a known U.S. person is proposed for lethal action, such as a U.S. citiz en overseas, the defense agencies make a recommendation but it is the President who ultimately de cides whether to target that U.S. person for lethal action. See id . at 14 § 3.E. In neither decisi on-making process is the decis ionmaker required to make preliminary findings or follow a specifi c process.23 The analogy between AEDPA and the Presidential Policy Guidance is too imperfect for case law on the former to support a conclusion he re that the Presidential Policy Guidance provides requisite standa rds for judicial review. As an emphasis to this conclusion, the Presidential Policy Guidance itself states that it “is not inte nded to, and does not , create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, a gencies, or entities, its offi cers, employees, or agents, or any other person.” Presidential Poli cy Guidance at 18 § 8.A. AEDP A, however, specifically provides a reviewable right to challenge an organization’s desi gnation as a terrorist organization.
See 8 U.S.C. § 1189(c)(1) (“Not later than 30 days after publicati on in the Federal Register of a designation, an amended designation, or a determination in resp onse to a petition for revocation, the designated organization may seek judicial review in the Uni ted States Court of Appeals for the District of Columbia Circuit.”). Whether Defendants complied with the Presidential Policy Guidan ce is a political question the Court must refrain from addressing. Count One wil l be dismissed. Counts Two and Three – Agency action was not in accord with law or statutory authority Counts Two and Three challenge the legal authority upon which t he Defendants based their decision to add Mr . Kareem to the Kill List. Mr. K areem argues such a decision was not in accord with law and was inexcess of statutory authority because it: (1) “violate[d] the prohibition on conspiring to or a ssassinating any person abroad contained in Executive Order 12,333”; (2) “violate[d] the prohibition against war crimes con tained in 18 U.S.C. § 2441”; (3) “violate[d] Article 6 of the International Covenant on Civil an d Political Rights”; (4) “violate[d] 18 U.S.C. § 956(a)(1), which pro hibits conspiracy to commit mur der or maiming outside the24 United States”; and (5) “exceed[e d] the authority given to the Executive pursuant to the Authorization for the U se of Military Force.” 4 Compl. ¶¶ 73-76, 78. This Court follows the functional approach to th e political que stion doctrine adopted by the D.C. Circuit in El-Shifa Pharmaceutical Industries v. United States and applied in Bin Ali Jaber v. United States . The Circuit distinguishes betw een “claims requiring [courts] to decide whether taking military action was wise—a policy choice and value determination constitutionally committed for resolution to the halls of Congr ess or the confines of the Executive Branch” and “claims pr esenting purely legal issues su ch as whether the government had legal authority to act.” El-Shifa , 607 F.3d at 842; see also Jaber , 861 F.3d at 246. As discussed above, Mr. Kareem’s fir st claim would require the Cou rt to delve into the propriety or merit of the decision to place Mr. Kareem on the Kill List, whi ch is beyond the Court’s authority. Counts Two and Three, on the othe r hand, appear at first blush to present “pure[] legal issues,” namely whether Defendants violat ed a pertinent legal authority when they placed Mr. Kareem on the Kill List. However, the pro cess of determining whether Def endants exceeded their authority or violated any of the statutes re ferenced in the Complaint wou ld require the Court to make a finding on the propriety of the a lleged action, which is prohib ited by the political question doctrine. Therefore, the Court finds Counts Two and Three rais e a nonjusticia ble political question and must be dismissed.

4 The Authorization for Use of M ilitary Force (AUMF), Pub. L. No . 107-40, 115 Stat. 224 (2001), authorized the Presidentto “use all necessary and appr opriate force against those nations, organizations, or persons [that] he determines planned, authori zed, committed, or aided the terrorist attacks” of September 11, 2001. Hamdi v. Rumsfeld , 542 U.S. 507, 510 (2004) (quoting 115 Stat. 224, § 2(a)).25 Counts Four, Five, and Six – Defendants denied Mr. Kareem his r ights to due process and the opportuni ty to be heard and deprived him of his First, Fourth, and Fifth Amendment rights Counts Four, Five, and Six ask th e Court to find that Mr. Karee m was deprived of his constitutional rights when Def endants designated him for th e Kill List and denied him of a prior opportunity to be heard. See Compl. ¶¶ 81-93. “[T]he Supreme Court has repeatedly found that claims based on [due process] rights are justiciable, evenif they implicate foreign policy decisions.” Comm. of U.S. Citizens Living in Nicaragua v. Reagan , 859 F.2d 929, 935 (D.C. Cir. 1988) (citing Regan v. Wald , 468 U.S. 222 (1984); Dames & Moore v. Regan , 453 U.S. 654 (1981)); see also Boumediene v. Bush, 553 U.S. 723, 742 (2008) (“The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.”); Hamdi , 542 U.S. at 536-37 (emphasizing, with respect to challenges to the factual basis of a citizen’s detention, that “it would turn our system of checks and balances on its head to suggest that a cit izen could not make his way to court with a challenge to . . . h is detention by his Government , simply because the Executive opposes making available such a challenge”); id . at 536 (“Whatever power the United States Constitution envisions for the Executive . . . in times of conf lict, it most assuredly envisions a role for all three branches whe n individual liberties are at st ake.”); Califano v. Sanders , 430 U.S. 99, 109 (1977) (recognizing “the wel l-established principle tha t when constitutional questions are in issue, the availability of judicial review is presumed”) ; Vance v. Rumsfeld , 653 F.3d 591, 618-19 (7th Cir. 2011), rev’d en banc on other grounds , 701 F.3d 193 (“Courts reviewing claims of torture in violation of statu tes such as the Detainee Treatm ent Act or in violation of the Fifth26 Amendment do not endanger the separation of powers, but instead reinforce the complementary roles played by the three br anches of our government.”). Due process is not merely an ol d and dusty procedural obligatio n required by Robert’s Rules. 5 Instead, it is a living, breathing concept that protects U.S. persons from overreaching government action even, perhaps, on an occasion of war . In Committee of U.S. Citizens Living in Nicaragua v. Reagan , a group of U.S. citizens living i n Nicaragua advanced Fifth Amendment claims challenging U .S. support of military actions b y the so-called “Contras.” 859 F.2d at 935. They argued that U. S. funding to the Contras depr ived the plaintiffs of liberty and property without due process of law because the plaintiffs were physically threatened by the war in Nicaragua and were the inte nded targets of the Contras. Id . On appeal, the D.C. Circuit decided that the plaintiffs’ due process claims were “serious a llegations and not ones to be dismissed as nonjusticiable” beca use “the Executive’s power to conduct foreign relations free from the unwarranted supervision o f the Judiciary cannot give t he Executive carte blanche to trample the most fundamental liberty and property rights of thi s country’s citizenry.” Id

. (quoting Ramirez de Arellano , 745 F.2d at 1515). 6 “[D]ue process is flexible and calls for such procedural protec tions as the particular situation demands.” Morrissey v. Brewer , 408 U.S. 471, 481 (1972). It requires that a plaintiff show a protected inter est in life, lib erty, or property, see Town of Castle Rock v. Gonzales , 545 U.S. 748, 756 (2005), and that go vernment officials knowi ngly deprived him of

5 Robert’s Rules of Order is a commonly used manual of parliamentary or organizational procedure in the United States.

6 U.S. Citizens v. Reagan found the plaintiffs’ Fifth Amend ment claims justiciable, but ultimately declined to hear them because the plaintiffs did not allege that the United States participated in or encouraged inj uries to Americans in Nicaragu a. See 859 F.2d at 934-35.27 that interest, Daniels v. Williams , 474 U.S. 327, 335-36 (1986), w ithout notice and an opportunity to be heard “at a meaningful time and in a meaningf ul manner.” Mathews v. Eldridge , 424 U.S. 319, 333 (1976). Mr. Kareem alleges that the Defend ants targeted him for lethal force by putting his name on the Kill List, which he ded uces from five near misses by drones or other military strikes. As a U.S. citizen, he seeks to clarify his status and profession to Defendants and, thereby, assert his right to due process and a prior opportunity to be heard. His interest in avoiding the erroneous deprivation of his life is u niquely compelling. See Ake v. Oklahoma , 470 U.S. 68, 78 (1985) (“The private interest in the accuracyof a criminal proceedings that places an individual’s life or liberty at risk is almost uniquely compelling.”); Lockett v. Ohio , 438 U.S. 586, 604 (1978) (“[T]his qualitative difference betw een death and other penalties calls for a great er degree of reliability when the death sentence is imposed.”). Defendants rely on the analysis in El-Shifa to contend that this case is nonjusticiable. See 607 F.3d 836. The El-Shifa plaintiffs were owners of a Sudanese pharmaceutical plant who sued the United States after their plant was destroye d by a missile strike. U.S. officials asserted that the pl ant had been producing chemical w eapons for Osama bin Laden. Id

. at 838-39. The plaintiffs sought compensation for the plant’s destruction and the retraction of allegedly defamatory statements connecting them to al-Qaeda. Id . at 839. The Circuit dismissed their suit as barred by the pol itical question doctrine. Id . at 840-44. El-Shifa is distinguishable from this case in key respects––the El-Shifa plaintiffs were not U.S. persons and there was no allegation that they had a substa ntial connection to the United States that might have given rise to cognizable constitutional rights. See United States v. Verdugo-Urquidez , 494 U.S. 259, 271 (1990) (“[A]liens receive consti tutional protections when they have come within the territory of the United States and developed s ubstantial connections with th is country.”); 32 Cnty.28 Sovereignty Comm. v. Dep’t of State , 292 F.3d 797, 799 (D.C. Cir. 2002) (holding that a foreign plaintiff was not entitled to due pr ocess regarding the State D epartment’s designation of it as a foreign terrorist org anization because pl aintiff did not have acontrolling intere st in property in the United States and did not show any other substantial connec tion). Importantly, unlikethe plaintiffs in El-Shifa and Jaber , Mr. Kareem does not seek a ruli ng that a strike by the U.S. military was mistaken or improper. He seeks his birthright ins tead: a timely asse rtion of his due process rights under the Constitution to be heard before he mig ht be included on the Kill List and his First Amendment rights to f ree speech before he might be ta rgeted for lethal action due to his profession. The D.C. Circuit and t he Supreme Court have previo usly held that a citizen “must have a meaningful opportunity to c hallenge the factual basis fo r his designation as an enemy combatant.” Doe v. Mattis , 889 F.3d 745, 759 (D.C. Cir. 2018); see also Hamdi , 542 U.S. at 533 (“[A] citizen-detainee seeki ng to challenge his classification as an enemy combatant must receive notice of the factual ba sis for his classification, and a fair opportunit y to rebut the Government’s factual assertions before a neutral decisionmaker. ”). The Circuit recently extended the protections p rovided to detainees in Hamdi v. Rumsfeld to a citizen in a foreign country opposing transfer from U .S. custody to the custody of a nother nation. See Doe v. Mattis , 889 F.3d at 761-62. While these la tter cases provide only guid ance, not decision, their guidance is useful here because constitutional norms were extended to U. S. citizens abroad despite the context of war-making. The diffe rence between them and the ins tant matter is also notable: Mr. Kareem is not in U.S. custody and, i f targeted because he is on the Kill List, may well have been identified by means other than his name, profession, place of b irth, and the like. Now that he has made it to a U.S. court, however, hi s constitutional rights as a citizen must be recognized.29 Neither of the al-Aulaqi decisions provides a useful fin al analysis here. Nasser alAulaqi challenged “the facts of military decisions exercised th ousands of miles from the forum” and did so before the Presidential Policy Guidance was develope d in 2013 or published in 2016, thereby establishing the system whereby suc h identification of targets is made by the principals of U.S. defense agencies or the President in Washington. Al-Aulaqi I , 727 F. Supp. 2d at 45. The Bivens suit filed by Nasser al-Aulaqi af ter his son’s death was decid ed on the peculiarities of
Bivens precedent and the applicabilit y of that decision to new fact p atterns. This case is brought by a U.S. citizen who seeks to interpose accurate personal info rmation concerning his profession and activities into speci fic targeting decisions. These are weighty matters of law and fact but constitutional qu estions are the bread and butter of the federal judiciary. The Court finds tha t Counts Four, Five, and Six as presented by Mr. Kareem are justiciable.
B. Failure to State a Claim Defendants’ final argument in s upport of dismissal is the same as the first. They argue that Mr. Kareem’s allega tions that he has been put on the Kill List are implausible and, therefore, fail to state a c laim upon which relief may be grant ed. For the reasons stated above, the Court finds that Mr. Kareem’s allegations may be wrong as a matter of fact but the Complaint presents them in a plausible manner. It will deny De fendants’ motion to dismiss for failure to state a claim.30 IV. CONCLUSION For the foregoing reasons the Court will grant in part and deny in part Defendants’ Motion to Dismiss [Dkt. 8]. A memorializing Order accompanies this Memorandum Opinion.

Date: June 13, 2018 /s/ ROSEMARY M. COLLYER United States District Judge