Kareem v. Haspel

• Decision Date: 15 January 2021
• Docket Number: No. 19-5328,19-5328
• Citation: 986 F.3d 859
• Parties: Bilal Abdul KAREEM, Appellant v. Gina Cheri HASPEL, Director of the Central Intelligence Agency, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

986 F.3d 859

Bilal Abdul KAREEM, Appellant

v.Gina Cheri HASPEL, Director of the Central Intelligence Agency, et al., Appellees

No. 19-5328

United States Court of Appeals, District of Columbia Circuit.

Argued November 16, 2020

Decided January 15, 2021

Tara J. Plochocki argued the cause for appellant. With her on the briefs were Eric L. Lewis and Jeffrey D. Robinson, Washington, DC.

Joseph Margulies was on the brief for amici curiae Former State and Federal Prosecutors in support of appellant.

Santha Sonenberg, Washington, DC was on the brief for amicus curiae Russian Expert Professor William Bowring in support of appellant.

Hyland Hunt and Ruthanne M. Deutsch, Washington, DC, were on the brief for amici curiae Victims and Families of Victims of State-Sponsored Violence in Northern Ireland in support of appellant.

A. Richard Ellis was on the brief for amicus curiae Professor Brenner Fissell in support of appellant.

Bradley Hinshelwood, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was H. Thomas Bryon, III, Attorney.

Before: Srinivasan, Chief Judge, Henderson and Millett, Circuit Judges.

Karen LeCraft Henderson, Circuit Judge:

Plaintiff Bilal Abdul Kareem is a United States citizen who works in Syria as a journalist. Because five aerial bombings allegedly occurred in Kareem's vicinity in Syria during the summer of 2016, Kareem claims that he has mistakenly been placed on a purported list of individuals the United States has determined are terrorists who may be targeted and killed. Kareem seeks a declaration that his alleged inclusion on the purported list is unconstitutional and an injunction barring the United States government from including him on the purported list without providing additional procedural protections. The district court, after concluding that Kareem had established standing sufficient to survive a motion to dismiss and that some of Kareem's claims were justiciable, dismissed the complaint pursuant to the application of the state secrets privilege. The critical question before us is whether Kareem has Article III standing to seek prospective relief as, without Kareem's standing, we lack jurisdiction to consider the other issues raised in his appeal. The complaint fails to allege plausibly that any of the five aerial bombings were attributable to the United States and specifically targeted Kareem. Accordingly, his standing theory does not cross the line from conceivable to plausible. Thus, we vacate the district court's dismissal and remand with instructions to dismiss the complaint on the ground that Kareem lacks Article III standing.

I. BACKGROUND

A. Facts

Kareem works as a journalist in Syria for On the Ground Network (OGN), a news organization that provides "access to the views of the anti-Assad rebels." Compl. at ¶ 45, Kareem v. Haspel , 412 F. Supp. 3d 52 (D.D.C. 2019), ECF No. 1. Kareem's complaint alleges that he "posts interviews with rebel fighters on social media outlets" and "is one of the only Western journalists in the region given access to these individuals to interview them." Id.

The complaint further alleges that, while performing his work as a journalist in Syria in 2016, Kareem "narrowly missed being hit by military strikes" five different times. Id. at ¶ 46. Four of the alleged strikes occurred in June 2016. First, in Idlib City, after Kareem "heard aircraft approaching," an airstrike hit OGN's office building. Id. at ¶ 47. Second, after Kareem heard "drones buzzing above," a strike hit an area near Aleppo where Kareem and his cameraman had recently finished conducting an interview. Id. at ¶ 48. Third, "[t]he vehicle of Kareem and his staff was struck and destroyed by a drone-launched Hellfire missile." Id. at ¶ 49. At the time of the third strike, Kareem was sitting in a different, nearby vehicle which was "hurled into the air by the force of the blast" and "flipped upside down." Id. Fourth, a "missile" again hit OGN's office building in Idlib City. Id. at ¶ 50. Fifth, in August 2016, in an "area [that] had recently changed hands from [Syrian] government control to rebel hands," Kareem and his co-workers were in his car "when there was a huge blast only yards away from the car." Id. at ¶ 51.

As a result of the five near-miss experiences in a three-month period, Kareem alleges "[u]pon information and belief" that he "was the specific target" of each of the strikes and that his name is included on a list of targets for U.S. military action.¹ Id. at ¶ 52. According to the complaint, the United States has publicly disclosed that it "conducts lethal strikes targeted at individuals, using remotely piloted aircraft, among other weapons, and that targets are selected ... as a result of a ‘process’ in which targets are nominated by one or more defendants." Id. at ¶ 55. On May 22, 2013, then-President Barack Obama issued a document that outlined a process for designating individuals as terrorist targets approved for lethal action (Presidential Policy Guidance). Zaidan v. Trump , 317 F. Supp. 3d 8, 15 (D.D.C. 2018) (citing Compl. at ¶ 57).² According to the complaint, the Presidential Policy Guidance includes guidance on the "necessary preconditions for taking lethal action" and on the designation of individuals as targets based only on "metadata" collected from electronic devices (i.e. , without knowing the target's identity). Id. (citing Compl. at ¶¶ 61, 63).

Because of Kareem's proximity to the five aerial bombings described in the complaint, Kareem alleges that his name is on a list of individuals the United States has determined are terrorists and may be targeted and killed. See Kareem v. Haspel , 412 F. Supp. 3d 52, 55 (D.D.C. 2019). Kareem alleges that he was never notified of his inclusion on the list nor provided an opportunity to challenge his inclusion.

B. Procedure

In March 2017, Kareem filed suit against the Central Intelligence Agency (CIA), the Department of Defense (DOD), the Department of Homeland Security (DHS), the Department of Justice (DOJ) and the United States, as well as the CIA Director, the DOD and DHS Secretaries, the Attorney General, the National Security Advisor and the Director of National Intelligence (DNI), all in their official capacities.³ The complaint alleges that Kareem's purported inclusion on a list of terrorist targets approved for lethal force violated the Administrative Procedure Act, 5 U.S.C. §§ 701 – 706. It asserts six claims:

• Count 1: Inclusion of Kareem on the Kill List was arbitrary, capricious and an abuse of discretion.

• Count 2: Inclusion of Kareem on the Kill List was not in accordance with law.

• Count 3: Inclusion of Kareem on the Kill List exceeded the defendants’ statutory authority.

• Count 4: Inclusion of Kareem on the Kill List violated due process because Kareem was not provided notice nor given an opportunity to challenge his inclusion.

• Count 5: Inclusion of Kareem on the Kill List violated the First Amendment because it "has the effect of restricting and inhibiting [his] exercise of free speech and [his] ability to function as [a] journalist[ ] entitled to freedom of the press." Compl. at ¶ 85.

• Count 6: Inclusion of Kareem on the Kill List violated the Fourth and Fifth Amendments because it constituted an illegal seizure and sought to "deprive [Kareem] of life without due process of law." Id. at ¶ 91.

Kareem seeks (1) a declaration that his inclusion on the terrorist target list is unlawful and/or unconstitutional, (2) an injunction barring the defendants from including him on the terrorist target list without providing additional procedural protections and (3) an injunction requiring the defendants to remove him from the terrorist target list and/or stop targeting him for lethal action.

On June 5, 2017, the defendants moved to dismiss, arguing that Kareem lacked standing and that his claims presented non-justiciable political questions. On June 13, 2018, the district court granted in part and denied in part the motion to dismiss. See Zaidan , 317 F. Supp. 3d at 13. Specifically, the district court concluded that (i) Kareem had plausibly alleged standing sufficient to survive a motion to dismiss, id. at 19–21 ; (ii) Counts 1, 2 and 3 were non-justiciable under the political question doctrine, id. at 25–26 ; and (iii) Counts 4, 5 and 6 were justiciable under the political question doctrine, id. at 26–29.

As relevant here, the district court found that "[a]ccepting all well-pled allegations as true, Mr. Kareem has plausibly alleged that he was in 2016 a target on the Kill List with evidence that makes it ‘more than a sheer possibility.’ " Id. at 20 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). The district court reached its conclusion on the basis that Kareem "alleges that the United States engages in targeted drone strikes, that he has been the near victim of a military strike on five occasions (at least one of which included the use of a drone), and that he is a journalist who is often in contact with rebel or terrorist organizations." Id. (footnote omitted). The district court acknowledged that "[d]efendants set forth other plausible alternatives, such as the fact that Mr. Kareem could have been targeted by Syria for reporting on anti-Assad efforts," but concluded that "their argument does not make it implausible that the attacks were a result of U.S. action." Id.

After the district court's resolution of the motion to dismiss, the parties discussed potential pre-trial resolution. Kareem , 412 F. Supp. 3d at 55. "Despite two months of discussions, the parties were unable to resolve the litigation." Id. At that point, Kareem asked to begin discovery and the defendants informed the district court that they were considering a second motion to dismiss based on the state secrets privilege.

On January 30, 2019, the defendants filed a motion to dismiss pursuant to the state secrets privilege. Id. at 56. They submitted public affidavits from then-Acting...