A lawsuit challenging the U.S. government’s use of a so-called kill list to target suspected terrorists for drone attack overseas can go forward in part, a federal judge ruled Wednesday.
U.S. District Court Judge Rosemary Collyer rejected the government’s bid to dismiss the entirety of the the case brought last year by former Al Jazeera Islamabad bureau chief Ahmad Zaidan and freelance journalist Bilal Kareem.
Both men said they were nearly killed in a series of U.S. drone strikes overseas, leading them to conclude that they have been placed on a list approved targets for deadly drone attacks carried out by American forces.
Collyer threw out the claims raised by Zaidan, a Pakistani and Syrian citizen, but said Kareem, who is U.S. citizen, can proceed with several of his claims that the so-called kill list process violates his constitutional rights.
"Due process is not merely an and dusty procedural obligation required by Robert’s Rules. Instead, it is a living, breathing concept that protects U.S. persons from overreaching government action even, perhaps, on an occasion of war," wrote Collyer, an appointee of President George W. Bush. "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 uniquely compelling."
Collyer rejected arguments from Justice Department attorneys that the case raised political questions ill-suited for resolution by the judicial branch and intruded on military judgments left to the executive.
"Mr. Kareem is not in U.S. custody and, if targeted because he is on the Kill List, may well have been identified by means other than his name, profession, place of birth, and the like. Now that he has made it to a U.S. court, however, his constitutional rights as a citizen must be recognized," the judge wrote in her 30-page opinion. "These are weighty matters of law and fact but constitutional questions are the bread and butter of the federal judiciary."
The lawsuit was brought by Reprieve, a London-based human rights group.
Courts rejected similar suits in recent years brought on behalf of Al Qaeda in the Arabian Peninsula leader Anwar Al-Aulaqi and his 16-year-old son Abdulrahman, both of whom were killed in U.S. drone attacks in Yemen. Judges rejected both those suits.
Collyer said those suits were different, in part because they appeared to challenge battlefield decisions, while Kareem’s case alleges the relevant decisions were made in the U.S. "The persons alleged to have exercised this authority are alleged to have followed a known procedure that occurred in Washington or its environs," the judge wrote.
The journalists’ suit named President Donald Trump as the lead defendant in the case, although the alleged targeting of the two men appears to have begun under President Barack Obama. Trump loosened some restrictions Obama placed on the target approval process, but has left much of it intact.
Collyer dismissed Trump as a defendant for technical reasons. The case will proceed against several agencies and their leaders, including the Central Intelligence Agency, the Defense Department and the Justice Department.
A Justice Department spokeswoman declined to comment on the ruling.