How to Get Off the Kill List

Years after George W. Bush created a secret “kill list” of alleged terrorism suspects, it remains murky how one gets on the list, and just as complicated to try to get off it, as Marjorie Cohn explains.

By Marjorie Cohn

After the 9/11 attacks, the Bush administration created a secret “kill list” to step up the targeting of alleged terrorists for assassination. The criteria for inclusion on the list have apparently morphed over three presidential administrations, yet they remain elusive.

Last year, two journalists filed a federal lawsuit against Donald Trump and other high government officials, asking to be removed from the kill list until they have a meaningful opportunity to challenge their inclusion. Both men claim to have no association with al-Qaeda or the Taliban, to have no connection to the 9/11 attacks, and to pose no threat to the United States, its citizens, residents or national security.

Kareem and Zaidan Try to Get Off 

Bilal Abdul Kareem, a U.S. citizen and freelance journalist, has survived five attempts on his life from targeted air-strikes. A Turkish intelligence official told Kareem that the US government is trying to kill him.

Ahmad Muaffaq Zaidan, a citizen of Syria and Pakistan, is a senior journalist with Al Jazeera. He interviewed Osama bin Laden twice before the 9/11 attacks. Zaidan learned about his inclusion on the kill list from National Security Agency (NSA) documents leaked by Edward Snowden and published by The Intercept.

The NSA zeroed in on Zaidan as a result of a program called SKYNET. Ars Technica revealed that SKYNET — which uses an algorithm to gather metadata in order to identify and target terrorist suspects in Afghanistan, Pakistan and Somalia — would result in 99,000 false positives.

In their complaint filed in March 2017, Zaidan and Kareem alleged they were included on the kill list as a result of algorithms used by the United States to identify terrorists.

At a May 1 hearing in the case, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia questioned the U.S. government’s assertion of authority to unilaterally kill U.S. citizens abroad. Collyer repeatedly challenged government lawyers to explain why national security considerations outweigh a U.S. citizen’s inclusion on the kill list with no right to notice and an opportunity to respond.

“Are you saying a US citizen in a war zone has no constitutional rights?” Collyer asked Stephen Elliott, a Justice Department attorney. “If a US person is intentionally struck by a drone from the U.S., does that person have no constitutional rights to due process … no notice, anything?”

Al-Aulaqi Placed on List in 2010, Killed in 2011

Anwar Al-Aulaqi at Dar al Hijrah Mosque on Oct. 4 2001, in Falls Church, VA. (Syracuse Peace Council)

Collyer is the same judge who, in 2014, dismissed a lawsuit filed by the families of Anwar al-Aulaqi, his son Abdulrahman al-Aulaqi and Samir Khan — all US citizens who were killed in 2011 US drone strikes. Their families were seeking to hold officials in the Obama administration personally liable for their roles in the strikes.

Nasser al-Aulaqi was the father of Anwar al-Aulaqi, who was placed on the kill list maintained by the CIA and the military’s Joint Special Operations Command in 2010. Later that year, Nasser filed a lawsuit challenging the authorization for Anwar’s killing before he was killed in a US drone strike in Yemen in 2011. Nasser’s lawsuit sought clarification of the scope of the global battlefield, targeting standards and lack of transparency.

U.S. District Judge John Bates, also of the District of Columbia, dismissed Nasser’s suit, ruling that he lacked standing to challenge the violation of Anwar’s constitutional rights because Nasser’s constitutional rights were not violated by the government’s “alleged targeting of [Nasser’s] son” and the alleged targeting was “not designed to interfere with the father-adult son relationship.” Bates concluded, “[Nasser] cannot show that a parent suffers an injury in fact if his adult child is threatened with a future extrajudicial killing.”

Bates also held that the political question doctrine, based on separation of powers, prevented the judicial branch from reviewing military and foreign affairs decisions made by the executive and legislative branches.

“At its core, the suit sought to exercise a still much-needed check on a dangerous claim of executive power,” Center for Constitutional Rights attorney Pardiss Kebriaei, who filed the 2010 lawsuit on behalf of Nasser, wrote in my collection, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.

Like Kareem and Zaidan, Nasser claimed his son had a Fifth Amendment due process right to notice and an opportunity to be heard before being deprived of life, liberty or property.

In the 2014 al-Aulaqi/Khan lawsuit, Collyer considered the plaintiffs’ due process claims, but concluded the families had no remedy for their losses. Collyer noted that the US government had relied on the 2001 Authorization for Use of Military Force and she found compelling considerations of national security, separation of powers and the risk of interfering with military decisions. Collyer wrote that reviewing those decisions would impermissibly insert the courts into “the heart of executive and military planning and deliberation.”

But on May 1, Collyer distinguished Kareem and Zaidan from al-Aulaqi. Collyer said al-Aulaqi’s case “was more clear to me because he was a terrorist and claimed to be one,” but, “I’m very concerned about the rights of a US citizen who … asserts that he is not a combatant, that he has not taken sides. He is just a journalist doing his job.”

U.S. Citizens on List Violates Due Process

In 2014, Judge Anna Brown of the U.S. District Court for the District of Oregon held in Latif v. Holder that plaintiffs’ inclusion on the U.S. “no-fly list” violated their right to due process because it lacked “any meaningful procedures” for them to challenge their placement on the list. As those on the kill list, people on the no-fly list were given no notice or chance to contest the evidence used by the government to watchlist them.

Brown ordered defendants (former Attorney General Eric Holder, FBI Director James Comey and FBI Terrorist Screening Center Director Christopher Piehota) to “fashion new procedures that provide Plaintiffs with the requisite due process … without jeopardizing national security.”

But Brown limited her ruling to international, not domestic, travel. The government did not appeal Brown’s ruling, although there has been further litigation about what process is, in fact, due.

Attorney Steven Goldberg represented the plaintiff in Tarhuni v. Holder, a companion case to Latif. Goldberg told me that when they asked why the government put Tarhuni on the no-fly list, they were informed it was classified. “National security is always their defense,” Goldberg said.

“The government uses the political question doctrine to avoid litigating these issues. But the cases implicate constitutional rights,” he added. Goldberg noted that while courts need to be mindful of national security concerns, there are means to address them while permitting litigation of constitutional claims. They are contained in the Classified Information Procedures Act and lawyers can get security clearances with protective orders limiting disclosure.

Regarding placement on the kill list, however, one surefire way to get off is to wait until they kill you. Short of that, litigation and lobbying members of Congress remain less draconian alternatives.

Copyright, Truthout.  Reprinted with permission.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and an advisory board member of Veterans for Peace. The second, updated edition of her book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, was published in November. Visit her website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.

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30 comments for “How to Get Off the Kill List

  1. June 14, 2018 at 3:32 pm

    All rise for His Puisne Honor.
    The Kill List Algorithm,
    Judge, Jury and Executioner!

    Weep well ye devotees of freedom,
    For due process
    Has been struck a blow!

  2. Johan Meyer
    June 7, 2018 at 12:02 am

    It is time that the US government renounce the use of terrorism. From the assassination of Habyarimana mere days after, under Secretary of State for African Affairs, Herman Cohen’s death threat against the former, with the laughable anti peasant (bahutu, in Kinyarwanda) propaganda while the US sponsored state (bUgandan) terrorists massacred, by their own estimates, 2 million peasants (e.g. Eric Hakizimana), to the following genocidal resource theft terror in Congo Kinshasa, to the neo Nazi terror in Ukraine, to the genocidal terror in Iraq, it is time that the US government renounce the use of terror, and hand over its terrorist commanders over to a third party tribunal, most credibly that of Malaysia, for adjudication.

    As the US judiciary is party to the terrorist acts of the US government, the US judiciary, both as a body and as individuals, should also be adjudicated.

  3. June 4, 2018 at 4:50 pm

    Collyer wrote that reviewing those decisions would impermissibly insert the courts into “the heart of executive and military planning and deliberation.”

    And I think she considers that a rational comment. I wonder if Rosemary gives any thought to its implications, that it creates a great dark room which our justice system cannot enter.and consider also that the military has a North American Command.

  4. michael crockett
    June 3, 2018 at 2:04 am

    Thank you Realist. I too like the Kurt Vonnegut quote. I seem to recall that he fought in WW2, where he was taken prisoner and sent to a prison in Dresden, Germany. In the basement of the prison building there was a dairy where he and the other POWS worked. Dresden was bombed by the Allies despite the fact that no military assets were located there. The technique used by the bomber squadrons was called “fire bombing”. This is what happens when massive amounts of bombs are dropped in close proximity: large fireballs are produced which greatly amplify the destruction of the target. Vonnegut survived as the basement was as effective as a bomb shelter. He was one of the few in the city to survive. When he walked out he was shocked and overwhelmed with sadness and grief. He was horrified to see the extent of destruction around him. Dresden was reduced to a moonscape and tens of thousands of civilians lay dead.

  5. Silly Me
    June 2, 2018 at 9:00 am

    The scariest is that the otherwise-not-employable morons who make well over $100k a year need to justify their existence in order to keep their jobs, which means they are forced to find “enemies, ” where there is none.

    The only question is who their next victim is going to be. Sadly, plain stupidity is unpredictable.

  6. Piotr Berman
    June 2, 2018 at 8:37 am

    the alleged targeting was “not designed to interfere with the father-adult son relationship.” Bates concluded, “[Nasser] cannot show that a parent suffers an injury in fact if his adult child is threatened with a future extrajudicial killing.”

    I do not know if sophistry is more appalling here or inhumanity. It reminds me “First, they torture logic…”

  7. Zhu Bajie
    June 2, 2018 at 7:07 am

    If the Kill List isn’t full of political opponents, ex-girl friends, creditors, “friends” who’ve sold drugs to Joe Blow, politician, etc., they soon will be. Also, if someone can’t pay to have an enemy or an ex put onto the list, they will be, eventually, and probably not too many years in the future.

  8. Zhu Bajie
    June 2, 2018 at 6:55 am

    When I talk with ordinary Americans about the Kill List, D or R, they make excuses and say that only “other people, bad people” will be killed, not them. It’s the same kind of argument people make about homelessness — only other people, bad people, become homeless, not nice peopole like them. In effect, they are whistling in the dark, saying “I ain’t afraid of no ghosts!” In truth, no one is safe. Anyone who has annoyed someone powerful, with connections, can end up killed or “disappeared” into a secret prison. While we fuss about whether this or that candidate is Hitler, the USA has become rather like “dirty war” Argentina.

  9. jazza
    June 2, 2018 at 5:54 am

    what does it say about our planet that somebody/ anybody having a ‘kill list’ is normalised and acceptable?

  10. zendeviant
    June 2, 2018 at 5:08 am

    State secrets. Secret Justice. Nevermind rule of law. (those can be changed to fit the reality)

    Seems like it all started when televised murder wasn’t investigated, prosecuted, sentenced. Numbers on either side of ten.

    Once the bullet hits the brain (or the hellfire hits the wedding) one can be sure that the deceased is a “terrorist.”

    Meanwhile we continue with a national dungeon in Gitmo.

    “Lead us not into temptation, but deliver us from evil.” Please.

  11. Realist
    June 2, 2018 at 4:35 am

    As miniature drones become increasingly refined and weaponized, the playing field for assassins will become more level, with more equal opportunity for non-state hit men, freedom-fighters, rebels, jihadis and other free-lancers. Uncle Sam won’t have a monopoly on delivering sudden death from out of the sky whilst you, as victim, stroll languidly in the summer sun. Next big thing will be swarms of AI-programmed drones armed with explosives, incendiaries, toxic gases, poison darts, lasers, you name the weaponry, homing in on your biometrics. More opportunities to blame and sanction Russia will accrue, if you are a deep state hegemonist looking for an up-side. Plus, if you are a fervent capitalist, there will be beaucoup bucks to make by selling such tech to any party with enough money to afford it. And, it’s not like the requisite hardware and software is “made in America” any longer. Interesting times ahead for warmongers and sheeple alike. Happy hunting, future people!

    • Zhu Bajie
      June 2, 2018 at 6:58 am

      Russia-haters are sure to start blaming China, too.

    • Joe Tedesky
      June 2, 2018 at 9:48 am

      I’m sure they have prototypes, and possibly some secret models are already in action, but I see ‘insect size drones’ as the coming new deadly featured weapon of choice. Imagine a drone the size of a fly, and then picture that mini-drone delivering a poison or even a small deadly bullet sized slug, to kill an enemy in hiding. Why, you could steer the drone to behind enemy lines, and do better than Sgt. York. Manage to create a miniature drone which would be 98.3% invisible then your on your way to unheard of rapidly multiplying death statistics to win your war.

      Now imagine we humans took that brilliance of ours and created drones to deliver paramedical assistance to stranded victims in need of help. Picture a drone manufactured to help victims of a building collapse receive assistance in hard to reach places, until rescue crews can reach the distressed victim. In fact Realist I’ll bet with your experience and back ground you could dream up many a use for this new drone technology beyond war.

      You always bring up great conversational topics Realist, and with this one you got me too thinking. Joe

  12. john wilson
    June 2, 2018 at 4:15 am

    Why ask a judge what he thinks about extra judicial murder? The judges are bought and paid for by the deep state and owned by it. A fair, impartial judge is rare as hen’s teeth. The duty of judges in any country is to the state and to always find in favour of the state.

  13. Homina
    June 1, 2018 at 8:22 pm

    “Regarding placement on the kill list, however, one surefire way to get off is to wait until they kill you.”

    Even that’s not surefire. You could be a signature strike victim where the US doesn’t even know who you are [except retroactively a terrorist, as all victims are from an infant on up], so wouldn’t remove your name from the list.

    And the US has killed several people a lot more than once (via claims and oops, no not actually did). So they might kill you but then not quite be sure it was you so your name would remain on the list as they kill other people that could possibly be you.

    • john wilson
      June 2, 2018 at 4:19 am

      Osama bin-Laden was killed numerous times. The stunt the US pulled off in Pakistan was probably the best one ever. Who knows who was supposed to have killed that time?

      • Zhu Bajie
        June 2, 2018 at 7:00 am

        Al Ahram had printed OBL’s obituary about 5 years earlier. Dead of kidney failure, they said.

  14. Matt Shelton
    June 1, 2018 at 6:21 pm

    It easy to get off the list. Just sign up to be a moderate rebel in a CIA regime operation.

  15. Sally Snyder
    June 1, 2018 at 1:03 pm

    Here is an article that looks at how widely America’s War on Terror has spread and how much it has cost U.S. taxpayers:

    https://viableopposition.blogspot.ca/2018/03/the-expansive-and-expensive-war-on.html

    Thank goodness that the American military-industrial-intelligence complex is there to soak up all of those tax dollars.

    • Joe Tedesky
      June 1, 2018 at 4:24 pm

      Sally like your linked article states, ‘the war on terror has been a spectacular failure’. Only, and I know you know this Sally, failed wars and bogged down battles is everything our MIC relies on for further profit. Win a war, lose profits.

      Sadly, the only thing that has happened in America’s quest to free the world is that us domestic Americans continue to lose our rights. Little is ever discussed about how all of these new laws, such as the Patriot Act, have been put in place. Little does anyone every question to what precedents have been established, as the rules of the game change with little notice given to the players.

      Although, I’m all for gun safety, my fear of outlawing all gun ownership, is that it will only be a beginning of a whole lot of new laws taken away from us, as will be the result of doing away with the second amendment. I don’t mean to bring up gun issue rights, but I do this as my using the anti-gun craze has just one more way of starting an avalanche of prohibitive laws. Remember prohibition. Most of what I know of with our U.S. Constitution is based on assuring positive rights, no so much on the negative of taking rights away. This is a precious precedent to overturn.

      This article should be a one hour segment on all national tv’s. Because of the rarity of discussion about our civil liberties we Americans continue to avoid the 10k elephant in the room….it’s time America we talk about our civil rights. Joe

      • john wilson
        June 2, 2018 at 4:22 am

        A spectacular failure, Joe? I don’t think so, not if your a share holder in the manufacture of arms and war machines. The war on terror is one of the greatest success stories in American history.

        • Joe Tedesky
          June 2, 2018 at 9:30 am

          John as usual your point is well taken. Like I said, win a war, lose the profits. Our citizen demise is their most fortunate windfall. The longer the quagmire the better for business. Think of all the wasted ammunition stock, and then think of the replacement bullet business, and it becomes mind boggling to the imagination to comprehend what it takes to fight even just one deadly battle. Watch film footage of bombers dropping bombs, and then think of the many hard earned hours of your tax dollars it took to manufacturer just one of those massively destructive bombs, and then take a break from your getting dizzy from picturing such expensive human destruction. In the end, it’s a business with nothing to show for it’s grand production but the destruction it leaves in it’s wake of destruction, and the new terrorist it will give birth to, might I add. And on and on it goes, and where it stops nobody knows but the money lenders of death. Joe

      • Zhu Bajie
        June 2, 2018 at 7:03 am

        Our Fearless Leaders are not afraid of our gun nuts and militias. They lack the discipline or the supply to be seriously dangerous to anyone but their neighbors. In a real civil war, they’d run out of bullets quickly.

        • Joe Tedesky
          June 2, 2018 at 9:15 am

          I agree. I think it would take a whole generation of insurgent militias to even be able to capture, and secure a few city blocks, if they were to attempt a stand off against our government. Plus I don’t think the founding fathers had the U.S. Government in mind when they spoke about rebellious uprisings against a tyrannical government. I think Great Briton was the tyrannical Government they spoke to. No matter, private contractors and reservists will make sure our streets are free of all armed rebels. Peace. Joe

          • Zhu Bajie
            June 2, 2018 at 9:42 am

            Oh, a lot of “militias” probably hope to be death squads for the appropriate strong man.

  16. Jeff
    June 1, 2018 at 12:59 pm

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

    I don’t see how declaring something “classified” should be able to trump your constitutional rights. If it can, then having “constitutional rights” has no meaning.

    • Kenny
      June 1, 2018 at 1:34 pm

      Your logic is impeccable.

    • john wilson
      June 2, 2018 at 4:24 am

      Exactly, Jeff, what constitutional rights? These rights have long since fallen by the way.

    • Realist
      June 2, 2018 at 4:53 am

      No question about it. Our government has used that “classified” cop-out to deny constitutional or human rights and even belated “justice” to whomever they please for far too long, aiding and abetting absolute murder on massive scales in many cases. Need to bomb and strafe an entire hospital in Afghanistan to smoke some suspected jihadi leader? Just do it, the doctors and other patients are just collateral damage. We’ll simply deny it ever happened and classify all the details to make sure no one ever learns the truth. Such illegal and immoral actions are simply routine for Washington’s killing machines around the world which act diametrically opposed to every standard this country claims to stand for. Everything you “learn” about your country in school till you graduate college, you spend un-learning till the day you die.

      “Maturity is a bitter disappointment for which no remedy exists, unless laughter could be said to remedy anything.”–Kurt Vonnegut

      You do laugh, but not because it’s a joke.

      • Skip Scott
        June 2, 2018 at 7:41 am

        That’s a great quote from Vonnegut. Thanks for sharing it.

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