The Kill List

New York born Darrell Lamont Phelps (a former stand-up comic turned journalist) is suing the US government, because he believes that as a journalist, traveling deep within jihadist circles to interview militants in various organizations labeled by the US government as terrorists, he has been specifically targeted by the federal government for elimination. Having been the subject of US supported shelling, missile and drone strikes, his lawsuit sought to discover whether he actually was on an official federal “kill list.” The government, claiming statutory privilege under a judicially vetted state’s secret law, refused to provide that information – one way or the other – claiming releasing such information would compromise US security and military operations. 

So far, so good. Makes sense. Let’s dig a little more. “Phelps grew up in Mount Vernon, New York; he attended Mount Vernon High School, then studied creative writing at Purchase College SUNY, before going on to work in stand-up comedy. He converted to Islam [and changed his name to Bilal Abdul Kareem], partly due to its ‘emphasis on clean living’, travelled to Egypt to study Arabic, where he later obtained a presenting role with Saudi- funded television channel, Huda TV. After leaving Huda TV, due to ‘disagreements’, he travelled to Rwanda and Libya to film documentaries, before arriving in Syria in 2012 where he was first hosted by Ahrar al-Sham. 

“After initially working with Western mainstream news outlets, such as Sky News and the BBC [including CNN], he helped found ‘On The Ground News’. Publishing on Facebook, Twitter and YouTube, its official website claims it is ‘committed to delivering accurate English language news to a Western audience regarding the Syrian crisis’.” Wikipedia. But Kareem (nee Phleps) had reason to believe that he was on a US hit list and wanted to find out.

“While [Kareem] harshly criticizes the jihadists of the Islamic State, he has done extensive interviews with members of the Syrian affiliate of Al Qaeda. In one, a prominent jihadist cleric from Saudi Arabia explains why joining the jihad in Syria is a religious obligation and says that fighters in Syria are ‘the first line of defense’ against the Shiites… Such interviews have led critics to brand Mr. Abdul Kareem a jihadist propagandist… The Syrian government and its Russian allies say he cavorts with terrorists. Although the United States has taken no public stance on his work, terrorism analysts say he provides an uncritical, English-language platform for jihadists.” New York Times, March 10, 2017.

Having lost at the trial court level – the government was not required to turn over any secret information – the case (Kareem vs Haspel, U.S. Court of Appeals of the District of Columbia) moved up into the federal appellate court. What makes this case stand out, why I elected to blog about it, is not whether or not the federal government has a reasonable right to protect state secrets, which it does, but where the oral arguments went when it came to the notion of whether there were circumstances where the United States government could elect to kill a US citizen without the normal judicial due process… by a secret order. Kareem claims he was the wrongful target of such an order. The federal lawyer insisted the government could, under certain circumstances, order the extrajudicial execution of an American citizen.

“Drawing alarm at the D.C. Circuit, a lawyer for the United States argued Monday [11/16] that the government has the power to kill its citizens without judicial oversight when state secrets are involved… ‘Do you appreciate how extraordinary that proposition is?’ U.S. Circuit Judge Patricia Millett asked Justice Department attorney Bradley Hinshelwood, paraphrasing his claim as giving the government the ability to ‘unilaterally decide to kill U.S. citizens.’… “[T]he Justice Department’s Hinshelwood conceded… that a strike against a U.S. citizen is a serious undertaking. Where the judiciary can step in, he said, is in ensuring that the state-secrets privilege was appropriately applied.

“But Kareem’s attorney, Tara Jordan Plochocki, argued the government was radically expanding sovereignty, domestically and abroad, allowed under state-secrets privilege… ‘Whether that’s in a parking lot in the United States or abroad in Syria, the government has claimed — for the first time ever in this case — that it has unfettered and unreviewable discretion to kill US citizens at will,’ Plochocki said. 

“Shrugging off Kareem’s claims as baseless speculation, the government argued the alleged airstrikes occurred at a time when Syria was wracked by civil war… ‘In all of these circumstances, he’s not even the only person present, much less is there anything to suggest that he’s actually the target of any of these specific attacks,’ Hinshelwood said. 

“The three-judge panel took seriously the defense that bombs pummeled Syria in 2016 as the conflict between the Assad regime and rebel groups roared… U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee, said she viewed it as a ‘spectacular delusion of grandeur’ that Kareem claims a series of U.S. missiles were aimed at him.” Courthouse News Service, November 16th.  

No decision was announced but is expected soon. The appellate court could remand the case for further findings, perhaps in camera, simply affirm the lower court’s finding or articulate more precise standards for this kind of discovery. Would Kareem have to offer more proof, beyond mere serendipity? Where would get that proof if not from the government?

The appellate court is unlikely to address whether the US government can target US citizens for execution without normal due process, since that is not the main issue in the case. But we should all note that the government believes that it can, in secret but provided certain internal standards and procedures are met, kill US citizens without a normal trial. But how do we know those standards are being followed? What if a rogue government simply wanted to off its enemies under the guise of national security? What happens if a US-born citizen becomes the militant leader of a group that has declared war on the United States? Interesting. What do you think should be the solution?

I’m Peter Dekom, and hard cases can often produce bad law, but we do live in trying times that defy traditional answers.