License to Kill
Tags: Politics, Law, Justice, Terrorism, Drones

Last week, most people’s attention was focused on the ongoing refusal by President Trump to concede the presidential election. This is understandable: his lawyers are openly admitting to be engaged in an effort to force the court system to overturn the results of a free and fair election. That’s alarming! But what if I told you that this antidemocratic, scorched-earth attempt to disenfranchise millions of American citizens was not the most disturbing thing that a lawyer did on behalf of Donald Trump last week?

The story of how Rudy Giuliani and Sidney Powell were beaten to the top spot on the deplorable power rankings begins with a man whose birth name is Darrell Lamont Phelps. As the New York Times reported in 2017, Phelps has a fairly classic American story: he was born in Mount Vernon, New York, graduated high school in 1988, and moved to New York City to pursue an artist’s life; trying his hand at stand up comedy and music before experiencing a spiritual revelation. Phelps found Islam, converted, studied Arabic, and moved to the Middle East to find a job, newly christened as Bilal Abdul Kareem. There, Kareem started working at a television station in Egypt, HudaTV, producing an English-language religious program called Solutions.

An episode of Solutions, a short-lived program Kareem hosted for HudaTV

After having disagreements with HudaTV about the programming, and out of an interest in current affairs, Kareem left to become a roving journalist, producing documentaries around the region. By 2012, in the thick of the Syrian civil war, Kareem had become singularly focused on documenting the conflict that was rapidly escalating into an international humanitarian crisis. He worked with mainstream media outlets to produce content about the Islamist fighters on the ground, but found that he was boxed into sensationalizing the infantry, and was given no room to profile them in a three-dimensional way. So he created On The Ground News with some friends, and put himself in extraordinarily dangerous situations to try and cover the conflict from the front lines.

Around 2016, something strange started happening: Kareem found himself surrounded by missile explosions. For the average person reading this, that might not seem odd, given that he was working in war-torn Syria, but in a matter of months, Kareem narrowly escaped death at the hands of a drone-launched missile attack five different times, a number that would stretch the credulity of even the most ardent skeptic. This was not a case of extremely bad luck. He reached out to his sources on the ground, who confirmed that he had been placed on the United States government “kill list”.

Officially designated as the “disposition matrix”, the existence and development of the new kill list that Abdul Kareem found himself on was reported on by the Washington Post’s Greg Miller in a 2012 exposé that was a finalist for the Pulitzer Prize. In that report, Miller revealed that the Obama administration had revamped the counterterrorism strategies of previous administrations, including the strategy of targeting specific threats on a kill list compiled by National Intelligence. Specifically, they took advantage of improvements in drone technology to meet the political need to wind down traditional manned operations and began targeting suspected terrorists in a more systematic fashion. Kareem, an American citizen, had found himself in the crosshairs of the program, and was being hunted by his own government.

The details of the case and the policy are fascinating, and Matt Taibbi of Rolling Stone dug into them in greater detail in a 2018 article, but they are not actually that relevant for understanding the tectonic shift that has occurred in the litigation of his matter. Suffice it to say that the publicly available evidence that Bilal Abdul Kareem was engaged in terrorist activity is extremely thin, and effectively comes down to a perceived pro-Islamist bias in his coverage. His case was dismissed in September of last year when lawyers for the Trump administration invoked the state secrets designation to prevent a federal judge from granting Kareem the opportunity to contest his placement on the disposition matrix. The designation is something of a trump card: courts have been extremely reticent to get involved with issues of national security, granting broad deference to the executive if he can plausibly claim that his actions are in service of protecting the country. Nevertheless, Kareem filed to appeal the initial ruling at the D.C. Circuit Court of Appeals, which was granted.

Monday was the first date of the appellate hearings. Courthouse News Service, which has been covering the case, reported that the Justice Department attorney assigned to argue the case, Bradley Hinshelwood, had made a claim that raised alarm bells as soon as he had said it: that the government has the power to kill U.S. citizens when state secrets are involved, and even more importantly, that the courts have no role in oversight of that power. Hinshelwood conceded to the three-judge panel that there is a role for the judiciary to play in ascertaining whether the state secrets privilege had been properly invoked, but as long as it had been, there is no legal recourse for being killed by the government “whether that’s in a parking lot in the United States or abroad in Syria”, as defense attorney Tara Plochocki put it.

That is, despite the fact that it is not being covered that way, a remarkable expansion of the powers of the executive and an equally remarkable abasement of the constitutional right to due process. The Justice Department, if it is successful in litigating this case, will have made it possible to summarily execute any American who is sufficiently suspected of trading in state secrets. Make no mistake though: while this is a radical notion in the context of our understanding of citizenship, it is not extreme in the context of the history of the war on terror. What this is is perhaps the second major watershed moment after the targeted killing of Anwar Al-Awlaki, also an American citizen, who was suspected not just of trading secrets but coordinating attacks with Al-Qaeda. We have gone from justifying these assassinations with the need to take out confirmed active terrorists to flimsy claims of proximity to hostile actors.

Anwar Al-Awlaki, killed in a 2011 strike

For most people, this will not ring any alarm bells. Few of us are in a position to acquire state secrets, let alone to relay them to a malign foreign actor. I understand. But this gets to core issues at the heart of our system of government: separation of powers, checks and balances, and the right to due process. The systems and processes that land someone on one of these lists are murky, a black box not only to the public but to many of the legislators who could help change this terrifying status quo. If nothing is done, drone strikes on American citizens in foreign countries, on journalists like Bilal Abdul Kareem, will not only continue, but they will likely increase in frequency and ferocity as technology and data collection improve.

The D.C. Circuit Court of Appeals is unlikely to reverse the lower court’s decision. Even if they were to somehow decide to neuter the government’s state secrets card, it’s not even clear what remedy a judge could grant to someone like Kareem. A chance to speak with the bureaucrat involved with placing his name on the list, to politely request that he be allowed to continue un-exploded? Moreover, the precedent is clearly against Kareem: in the two most recent relevant cases, judges dismissed the matter. No, a change of course can only reasonably come from the Executive Branch. This falls under the discretion of the Commander-in-Chief, who could end all of these programs with the stroke of a pen. Neither Donald Trump, in his last days in office, nor Joe Biden, who was part of the White House that was responsible for the creation of the disposition matrix, are likely to be the ones to do so. But unless we want to continue down this dark path into dystopia, we must find a way to elect leaders that will take a stand on this core issue of civil liberties, rather than take the easy out of expanding the President’s war powers and killing the bad guys with a push of a button.

A few months ago, Kareem was captured by opposition militants in Syria, and has been in their custody ever since. Even in his absence, lawyers continue to fight for his right, and by extension our right, not to be droned into oblivion without a day in court. If they are unsuccessful, it will demonstrate a state of constitutional decay far greater than that which can be seen at press conferences in front of the Four Seasons Total Landscaping. Quite often in the Trump administration, the clown show distracts from the far more sinister activities occurring in the shadows of the carnival tent. That certainly seems to be the case here.