BILAL ABDUL KAREEM, Plaintiff, v. GINA CHERI HASPEL, Director of the Central Intelligence Agency, et al., Defendants.
Civil Action No. 17-581 (RMC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
September
MEMORANDUM OPINION
What constitutional right is more essential than the right to due process before the government may take a life? While the answer may be none, federal courts possess limited authority to resolve questions presented in a lawsuit, even when they are alleged to involve constitutional rights. This is such a case. Despite the serious nature of Plaintiff’s allegations, this Court must dismiss the action pursuant to the government’s invocation of the state secrets privilege.
Plaintiff Bilal Abdul Kareem is a journalist specializing in reporting on terrorism and conflict in the Middle East. Mr. Kareem has been the victim or near victim of at least five aerial bombings while in Syria. Accordingly, he believes his name is on a list of individuals the United States has determined are terrorists and may be killed (the so-called Kill List). Mr. Kareem sues the Director of the Central Intelligence Agency (CIA), the Secretary of the Department of Defense (DOD), the Secretary of the Department of Homeland Security (DHS), the Attorney General, and the Director of National Intelligence (DNI), all in their official capacities, as well as the Department of Justice (DOJ), DOD, DHS, and CIA. The Court previously granted in part and denied in part Defendants’ motion to dismiss for lack of standing and failure to state a claim upon which relief may be granted. Defendants now move to dismiss Mr. Kareem’s remaining claims pursuant to the state secrets privilege arguing that the facts necessary for Mr. Kareem to establish his prima facie case or for Defendants to defend against his claims are classified and without disclosure of those facts the case cannot proceed. Having carefully considered the issues, this Court agrees.
I. BACKGROUND
The facts are described in detail in the decision on Defendants’ first motion to dismiss, so they will be repeated here only as relevant. See Zaidan v. Trump, 317 F. Supp. 3d 8, 14-16 (D.D.C. 2018). After the Court permitted three of Mr. Kareem’s claims to proceed, the parties discussed potential pretrial resolution. Despite two months of discussions, the parties were unable to resolve the litigation.1 Mr. Kareem then asked to begin discovery and Defendants notified the Court that they were considering a second motion to dismiss based on the state secrets privilege.
II. LEGAL STANDARD
The United States is privileged to refuse to disclose information requested in litigation when “there is a reasonable danger” that the disclosure “will expose military matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10 (1953). The privilege “is not to be lightly invoked,” id. at 7, but “[c]ourts should accord the ‘utmost deference’ to executive assertions of privilege upon grounds of military or diplomatic secrets.” Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978) (Halkin I) (quoting United States v. Nixon, 418 U.S. 683, 710 (1974)).
Review of an invocation of the state secrets privilege occurs in three steps. First, “[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” Reynolds, 345 U.S. at 7-8. Next, the Court must evaluate the basis for the privilege “without forcing a disclosure of the very thing the privilege is designed to protect.” Id. at 8. The sensitivity of the privilege and the information at issue requires the Court to review declarations submitted, both publicly and in camera, to determine if the privilege is properly invoked. “[T]he court must be satisfied from all the evidence and circumstances, and ‘from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ If the court is so satisfied, the claim of the privilege will be accepted without requiring further disclosure.” Id. at 9 (quoting Hoffman v. United States, 341 U.S. 479, 486-87 (1951)). It is not necessary for the Court to examine the actual evidence at issue to make this determination. See id. at 9-10.
Finally, once the Court finds that there is a reasonable danger that disclosure of the information will expose military matters or harm national security, the Court must determine whether the case may proceed without the information or whether it is so entwined in the matter that the case cannot be litigated and dismissal is necessary. See Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1096 (9th Cir. 2010) (holding that when “there is no feasible way to litigate [the defendant’s] alleged liability without creating an unjustifiable risk of divulging state secrets,” the case must be dismissed).
III. ANALYSIS
A. Did the Government Satisfy the Procedural Requirements to Invoke the Privilege?
The government has satisfied the three procedural requirements for invoking the state secrets privilege. First, the privilege was asserted by the United States government itself, not a third party. Second, the claim of privilege was made through a formal declaration by the heads of agency responsible for the information. Patrick M.
B. Does the Information Qualify as Privileged?
“When properly invoked, the state secrets privilege is absolute. No competing public or private interest can be advanced to compel disclosure of information found to be protected by a claim of privilege.” Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983). Due to the absolute nature of the privilege, “a court must not merely unthinkingly ratify the executive’s assertion of absolute privilege, lest it inappropriately abandon its important judicial role.” In re United States of America, 872 F.2d 472, 475 (D.C. Cir. 1989). The government is required to show that disclosure of “the information poses a reasonable danger to secrets of state.” Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (Halkin II).
Other claims of privilege can be often overcome when the necessity presented by the requesting party outweighs the privilege, but such is not the case when state secrets would be disclosed. Instead, the degree of necessity “determine[s] how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Reynolds, 345 U.S. at 11 (citing Totten v. United States, 92 U.S. 105, 107 (1875)). “Therefore, the critical feature of the inquiry in evaluating the claim of privilege is not a balancing of ultimate interests at stake in the litigation. That balance has already been struck. Rather, the determination is whether the showing of the harm that might reasonably be seen to flow from disclosure is adequate in a given case to trigger the absolute right to withhold the information sought in that case.” Halkin II, 690 F.2d at 990.
Mr. Kareem’s claims involve allegations that the United States targeted an American citizen for lethal action in a foreign country without due process of law. His need for the information to prove his claims is unquestionably strong. Thus, “close examination of the government’s assertions is warranted.” Ellsberg, 709 F.2d at 63.
The government invokes the state secrets privilege to protect “the existence and operational details of alleged military and intelligence activities directed at combating the terrorist threat to the United States.” Mot. at 6. Mr. Kareem specifically requests discovery into:
- whether or not the United States has in fact targeted Kareem for lethal force and, if so, the facts on which the Government allegedly relied in reaching a purposed determination;
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what process the Government used to allegedly designate Kareem and, if he continues to be an alleged target, what the current targeting process is; and - whether or not the United States attempted to kill Kareem in the airstrikes alleged in the Complaint.
Id. at 6-7. Based on a review of the public and classified declarations, the Court finds that the information Mr. Kareem asks for constitutes privileged state secrets because “there is a reasonable danger” that disclosing such information would endanger national security. Reynolds, 345 U.S. at 10. “Detailed statements underscore that disclosure of [the privileged] information . . . and the means, sources and methods of intelligence gathering in the context of this case would undermine the government’s intelligence capabilities and compromise national security.” Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1204 (9th Cir. 2007).
The government explains that disclosure of whether an individual is being targeted for lethal action would permit that individual to alter his behavior to evade attack or capture and could risk intelligence sources and methods if an individual learns he is under surveillance. See Mot. at 11. Acting Secretary Shanahan stated in his public declaration that disclosing classified information about targeted airstrikes could hinder the United States’ military operations in Syria, see Shanahan Decl. ¶¶ 15-16, and disclosing whether the United States possesses information about a particular individual could alert them, allow them to seek to prevent further collection, and risk disclosure of intelligence sources and methods, thereby thwarting intelligence efforts. See id. ¶¶ 17-18. Director Coats similarly declared that: (1) disclosing whether the United States targets terrorists abroad with lethal force “could reasonably be expected to cause harm to national security by alerting terrorists and terrorist organizations to specific means that the U.S. Government is using, or has chosen not to use, to combat terrorism,” Coats Decl. ¶ 12; (2) confirming or denying whether Mr. Kareem has been designated for the use of lethal force could permit him to evade capture or further action by the United States, see id. ¶¶ 13-14; and (3) disclosing whether the United States maintains information about Mr. Kareem could “reveal the sources and methods by which such information was obtained, compromising the safety and effectiveness of those sources and methods.” Id. ¶ 16.
Mr. Kareem raises four points against allowing the privilege to apply. First, he argues that the constitutional right at issue—his right to due process before the United States can take his life—is so paramount as to make the state secrets privilege inapplicable. Second, he asks the Court to consider alternative methods of protecting the information, such as use of the Classified Information Procedures Act (CIPA),
Mr. Kareem’s first objection focuses on the significance of the right at issue—his right to due process, i.e., evidence and argument before the United
While no courts have previously addressed the state secrets privilege in the context of targeted killing, courts have addressed the privilege in cases involving other constitutional claims. The privilege has been invoked in cases involving warrantless surveillance, see, e.g., Mohamed, 614 F.3d at 1073 (affirming dismissal of challenge to an alleged extraordinary rendition program of the Central Intelligence Agency due to the invocation of the state secrets privilege); Al-Haramain, 507 F.3d at 1205 (holding that the state secrets privilege prevented disclosure of classified information and without that information plaintiff could not establish standing to challenge his alleged surveillance; case remanded for consideration of the interplay between the state secrets privilege and the
Mr. Kareem specifically equates his situation with a criminal capital case, where extra procedural protections are provided the defendant to ensure that punishment “is not meted out arbitrarily or capriciously.” California v. Ramos, 463 U.S. 992, 999 (1983). He argues that before a criminal defendant may be subject to capital punishment he has the opportunity to review, and potentially dispute, “a fulsome record of the allegations and considerations that will be used against him.” Opp’n at 5. He asks this Court for the same protections because he fears the United States military will kill him. Were the United States to choose to prosecute Mr. Kareem for his alleged involvement in terrorist activities, the government would be required to disclose, with the relevant protections, any classified information that would be material to Mr. Kareem’s defense. But Mr. Kareem is not a criminal defendant, he is a plaintiff in a civil suit against the United States, which setting renders the state secrets privilege absolute after it is properly asserted.
Third, Mr. Kareem challenges the legitimacy of the privilege because the United States has previously disclosed the existence of the Kill List and indicated that a United States citizen had been on the list. See Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56, 59 (D.D.C. 2014) (“President Barack Obama and Attorney General Eric Holder, Jr., have admitted that the United States targeted and killed Anwar Al-Aulaqi, a terrorist who was a key leader of al-Qa’ida in the Arabian Peninsula.”). Mr. Kareem challenges the legitimacy of invoking the state secrets privilege here since the United States previously determined that its security interests allowed the disclosure of
Finally, Mr. Kareem argues that the prospective nature of his case differentiates his dilemma from previous cases dealing with the state secrets privilege that challenged actions already taken by the United States. He maintains that none of the cited cases “involved a prosecution of a U.S. citizen or any action analogous to a prosecution.” Opp’n at 12. In this assertion he is correct: he is a U.S. citizen, voluntarily in Syria, reporting on the fighting by insurgents, and allegedly targeted by the United States without success so far. However, the applicability of the state secrets privilege has consistently been recognized in civil litigation against the United States even when a plaintiff was alleging violations of constitutional rights, which is exactly what the instant lawsuit entails. The Court understands the differences between this and prior cases but the similarities are controlling and require the same conclusion.
A court does not merely ratify the government’s assertion of privilege willy-nilly. This Court has reviewed the declarations submitted by the government and carefully considered Mr. Kareem’s claims and need for the documents, as well as the reasoning behind the privilege. Consistent thereto, the Court finds the state secrets privilege bars disclosure of the requested information to Mr. Kareem because disclosure would present a reasonable danger to national security.
C. May the Case Proceed Without the Privileged Information?
There is still a question as to whether the unavailability of the requested information is fatal to Mr. Kareem’s complaint. A court must dismiss a case in which a privilege of state secrets is sustained when: (1) disclosure is necessary for the plaintiff to make its prima facie case; (2) disclosure is necessary for the defendant to defend itself; or (3) further litigation would present an unjustifiable risk of disclosure. See Mohamed, 614 F.3d at 1087. The United States focuses on Mr. Kareem’s prima facie case, arguing that Mr. Kareem cannot establish his standing to sue without the information. The Court agrees and notes that all three reasons justify dismissal. Because “there is no feasible way to litigate [the United States’] alleged liability without creating an unjustifiable risk of divulging state secrets,” this case must be dismissed. Id. “[T]he claims and possible defenses are so infused with state secrets that the risk of disclosing them is both apparent and inevitable.” Id. at 1089.
To prove his prima facie case, Mr. Kareem must be able to show he was in fact targeted by the United States with lethal force. The Court previously found Mr. Kareem alleged facts sufficient, if proven, to survive a motion to dismiss, but having now held that the government is not required to disclose whether Mr. Kareem has been targeted as alleged, it is impossible for Mr. Kareem to obtain the necessary information to prove his claims. Without access to the privileged information, Mr. Kareem is unable to establish whether he was targeted by lethal force or what information was considered in reaching the alleged decision to target him. Mr. Kareem is “incapable of demonstrating
When a plaintiff’s prima facie case and a defendant’s defenses are not affected by the state secrets privilege, a court must still dismiss if “any attempt to proceed will threaten disclosure of the privileged matters.” Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236, 1241-42 (4th Cir. 1985). In that circumstance, the risk of disclosure alone leads to dismissal. The analysis applies here. The totality of the issues to be litigated surrounds the alleged decision to target Mr. Kareem but all such information is privileged as state secrets and will not be disclosed by the United States. “With no hope of a complete record and adversarial development of the [relevant] issue,” Halkin II, 690 F.2d at 1000, the Court cannot even begin an inquiry. The Complaint must be dismissed.
IV. CONCLUSION
For the foregoing reasons the Court will grant Defendants’ Motion to Dismiss pursuant to the State Secrets Privilege [Dkt. 24]. A memorializing Order accompanies this Memorandum Opinion.
Date: September 24, 2019
ROSEMARY M. COLLYER
United States District Judge