317 F. Supp. 3d 8
D.C. Cir.2018Background
- Plaintiffs are journalists: Ahmad Zaidan (Syrian/Pakistani) and Bilal Abdul Kareem (U.S. citizen) who report from conflict zones in the Middle East; both allege their conduct places them at risk of U.S. lethal targeting.
- Zaidan alleges his name appears on a publicly available SKYNET list of metadata-identified "potential terrorists" and on information-and-belief claims that this led to inclusion on a U.S. "Kill List." Court found these allegations too speculative.
- Kareem alleges five near-miss aerial strikes in Syria over a three-month period (including a Hellfire missile strike on a vehicle he was connected to) and claims those incidents plausibly show he was targeted and placed on the Kill List.
- Plaintiffs sued the President and multiple executive agencies and officers under the Administrative Procedure Act (APA) and constitutional provisions (Due Process, First, Fourth, Fifth Amendments); Complaint advances six counts challenging inclusion on the Kill List and lack of notice or process.
- Defendants moved to dismiss for lack of subject-matter jurisdiction (standing and political-question) and for failure to state a claim; the Court dismissed Zaidan for lack of standing, but found Kareem has standing for some claims and allowed certain constitutional and APA claims to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — injury-in-fact (Zaidan) | Zaidan: SKYNET listing and journalistic contacts make it plausible his name is on Kill List and he faces imminent lethal risk | Defs: Allegations are speculative and too attenuated to show actual or imminent risk | Held: Zaidan lacks standing; SKYNET → Kill List link is speculative and insufficient |
| Standing — injury-in-fact (Kareem) | Kareem: Five near-miss strikes (including Hellfire) plausibly show he was targeted and faces ongoing risk | Defs: Incidents more plausibly attributable to battlefield hazards or other actors; not shown to be U.S. action | Held: Kareem has pleaded a plausible, imminent injury; standing established (including causation and redressability) |
| Sovereign immunity / APA applicability | Kareem: APA waives immunity and allows review of agency action taken in D.C. under Presidential Policy Guidance | Defs: Military action "in the field" or during "time of war" may be exempt from APA; President not an agency | Held: President dismissed as a defendant (not an APA agency); factual record insufficient to apply APA "in the field/time of war" exception — claims against agencies survive at this stage |
| Political-question and justiciability | Plaintiffs: Constitutional and statutory challenges to designation and lack of process are judicially reviewable | Defs: Targeting decisions are core executive wartime functions lacking judicially manageable standards | Held: Mixed — challenges to compliance with Presidential Policy Guidance (process/standards) and broad merits (Count One, Counts Two & Three) are nonjusticiable and dismissed; procedural and constitutional claims (due process, First, Fourth/Fifth as pleaded for Kareem) are justiciable and may proceed |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (establishes injury-in-fact, causation, redressability standing test)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (speculation insufficient for imminent injury)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard on pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (application of Twombly plausibility to facts and legal conclusions)
- Hamdi v. Rumsfeld, 542 U.S. 507 (citizen's right to challenge detention/enemy-combatant classification)
- Baker v. Carr, 369 U.S. 186 (political-question doctrine factors)
- El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. approach to political-question and national-security suits)
- Doe v. Mattis, 889 F.3d 745 (D.C. Cir. recognition of procedural protections for citizens challenged abroad)
- People's Mojahedin Org. v. Dep't of State, 182 F.3d 17 (judicial review of foreign-terror-organization designation under statutory standards)
- Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. discussion of justiciability and challenges to targeting decisions)