United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
Ahmad Muaffaq Zaidan and Bilal Abdul Kareem are journalists
who specialize in reporting on terrorism and conflict in the
Middle East. Mr. Zaidan learned his name was included on a
list of suspected terrorists and Mr. Kareem has been the
victim or near victim of at least five aerial bombings while
in Syria. Based on this information, the Plaintiffs believe
their names are on a list of individuals the United States
has determined are terrorists and may be killed (the
so-called Kill List). Plaintiffs sue President Donald J.
Trump, 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. Plaintiffs
allege that these officials and agencies violated the
Administrative Procedure Act (APA), 5 U.S.C. § 551,
et seq., by putting Plaintiffs' names on the
Kill List. Defendants move to dismiss for lack of
subject-matter jurisdiction, arguing that Plaintiffs lack
standing and raise a political question outside the
jurisdiction of the courts. Defendants also move to dismiss
for failure to state a claim upon which relief may be
granted. The Court will grant the Motion to Dismiss in part
and deny it in part.
Court takes its facts from the Complaint which the
government, at this early stage of the litigation, has not
controverted. Mr. Zaidan is a Syrian and Pakistani citizen
who has been employed as a journalist by Al Jazeera for over
20 years. Compl. [Dkt. 1] ¶ 3. Mr. Kareem is an American
citizen and freelance journalist, reporting for BBC, Channel
4 in the United Kingdom, CNN, Sky News, and Al Jazeera.
Id. ¶ 4. Both Mr. Zaidan and Mr. Kareem
regularly investigate and report on terrorism and its causes
in the Middle East. Id. ¶¶ 3-4.
of his reporting, Mr. Zaidan was one of only two journalists
who interviewed Osama bin Laden prior to the attacks on
September 11, 2001. Id. ¶ 3. Mr. Zaidan was not
involved in planning the 9/11 attack or any other attack.
Id. ¶¶ 20-21. He has no association with
Al-Qaeda or the Taliban and poses no threat to the United
States or its citizens. Id. ¶¶ 22-23. Mr.
Zaidan's work does, however, require him to communicate
frequently “with sources who have connections [to]
terrorists and their associates” and to travel in
countries where terrorists are active. Id. ¶
26. In addition to bin Laden, Mr. Zaidan has interviewed
other terrorist leaders such as Baitullah Mehsud of the
Tehreek-e Taliban-e Pakistan (Taliban Movement of Pakistan)
and Abu Mohammad al-Jolani of the Al Nusra Front.
Id. ¶¶ 30-31. In 2015, Mr. Zaidan traveled
in Syria reporting on battles of the Free Syrian Army; as a
result, he says that he was listed on Syrian State Television
as a member of Al-Qaeda. Id. ¶ 32. Mr. Zaidan
alleges on information and belief that his actions as a
journalist caused him to be listed in a U.S. intelligence
document called SKYNET, which identified potential terrorists
based on their metadata (electronic patterns of
communications, writings, social media postings, and travel).
Id. ¶ 33. He believes that because he was
identified by SKYNET as a potential terrorist, he has also
been included on the Kill List, allowing him to be targeted
and killed. Id. ¶ 35.
Mr. Kareem has no association with Al-Qaeda or the Taliban,
has never participated in the planning of a terrorist attack,
and has never aided any organization or individual which
engages in terrorism. Id. ¶¶ 40-42. He is
currently employed by On the Ground Network (OGN) and tasked
with investigative journalistic coverage of the anti-Assad
rebels in Syria. Id. ¶ 45. This work involves
interactions with “local ‘militants' during
interviews.” Id. In June 2016, Mr. Kareem was
at the location of four different aerial attacks.
Id. ¶¶ 47-50. The first and fourth
incidents involved strikes to the OGN office in Idlib City
when Mr. Kareem was inside the office. Id.
¶¶ 47, 50. The second attack occurred in the town
of Hariyataan while Mr. Kareem was there conducting an
interview. Id. ¶ 48. The strike hit the exact
location where Mr. Kareem was setting up for the interview,
but at the time of the strike he had climbed a nearby hill to
“view destroyed homes a street away.”
Id. The third attack occurred when the vehicle in
which Mr. Kareem and his staff were traveling was
“struck and destroyed by a drone-launched Hellfire
missile.” Id. ¶ 49. At the time of the
strike, Mr. 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. In August 2016, Mr. Kareem was again the victim
of an attack when he was at the Kulliyatul Midfa‘iyyah
(Artillery College) to film. Id. ¶ 51. He and
his coworkers were in his car “when there was a huge
blast only yards away from the car.” Id. The
occupants survived, but all were hit by shrapnel from the
blast. Id. As a result of these five near-miss
experiences in a three-month period, Mr. Kareem alleges upon
information and belief that he was the target and that his
name is included on the United States Kill List. Id.
to the Complaint, the United States has publically 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, and their inclusion on the Kill List is
confirmed through a series of meetings and discussions among
defendants.” Id. ¶ 55. Then-President
Barack H. Obama issued the Presidential Policy Guidance on
May 22, 2013, which delineated guidelines and provided for
oversight and accountability in the process of designating
individuals for the Kill List. Id. ¶ 57;
see also Procedures for Approving Direct Action
Against Terrorist Targets Located Outside the United States
and Areas of Active Hostilities (May 22, 2013),
(Presidential Policy Guidance). On August 6, 2016, the
Presidential Policy Guidance was made public. Id.
¶ 58. It includes guidance on designating individuals
based only on metadata (or without knowing their identities),
as well as the “necessary preconditions for taking
lethal action.” Id. ¶¶ 61, 63.
allege that Defendants violated the APA when Defendants added
Plaintiffs' names to the so-called Kill List because
Plaintiffs do not meet the preconditions listed in the
Presidential Policy Guidance. Id. ¶ 64.
Plaintiffs also challenge the lack of notice and opportunity
to refute their inclusion on the Kill List. Id.
¶ 65. The Complaint advances six counts under the APA:
Count One: Inclusion of Plaintiffs on the Kill List was
arbitrary, capricious and an abuse of discretion.
Count Two: Inclusion of Plaintiffs on the Kill List was not
in accord with law because it (1) “violates the
prohibition on conspiring to or assassinating any person
abroad contained in Executive Order 12, 333”; (2)
“violates the prohibition against war crimes contained
in 18 U.S.C. § 2441 because it constitutes a grave
breach of common article 3 of the Geneva Conventions as
specified in 18 U.S.C. § 2441(c)(3)”; (3)
“violates Article 6 of the International Covenant on
Civil and Political Rights”; and (4) “violates 18
U.S.C. § 956(a)(1).”
Count Three: Inclusion of Plaintiffs on the Kill List
exceeded Defendants' statutory authority “because
it exceeds the authority given to the Executive pursuant to
the Authorization for the Use of Military Force.”
Count Four: Inclusion of Plaintiffs on the Kill List violated
due process because Plaintiffs were provided no notice and
given no opportunity to challenge their inclusion.
Count Five: Inclusion of Plaintiffs on the Kill List violated
the First Amendment because it “has the effect of
restricting and inhibiting their exercise of free speech and
their ability to function as journalists entitled to freedom
of the press.”
Count Six (only as to Mr. Kareem): Inclusion of Plaintiff on
the Kill List violated the Fourth and Fifth Amendments
because it constituted an illegal seizure and “seeks to
deprive [Mr. Kareem] of life without due process of
Id. ¶¶ 70, 72-76, 78, 82-83, 85, 90-91. In
the present posture of the case, the Court must accept all
plausible factual allegations in the Complaint as true.
See Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir.
5, 2017, Defendants moved to dismiss. Mem. of P. & A. in
Supp. of Defs.' Mot. to Dismiss (Mot.) [Dkt. 8-1].
Plaintiffs opposed. Pls.' Mem. of Law in Opp'n to
Defs.' Mot. to Dismiss (Opp'n) [Dkt. 10]. Defendants
replied. Defs.' Reply Mem. in Supp. of Their Mot. to
Dismiss (Reply) [Dkt. 11]. The Court heard oral argument on
May 1, 2018.
Motion to Dismiss - Fed.R.Civ.P. 12(b)(1)
Rule of Civil Procedure 12(b)(1) allows a defendant to move
to dismiss a complaint, or any portion thereof, for lack of
subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). No action
of the parties can confer subject-matter jurisdiction on a
federal court because subject-matter jurisdiction is both a
statutory requirement and an Article III requirement.
Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003). The party claiming subject-matter
jurisdiction bears the burden of demonstrating that such
jurisdiction exists. Khadr v. United
States, 529 F.3d 1112, 1115 (D.C. Cir. 2008); see
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994) (noting that federal courts are courts of limited
jurisdiction and “[i]t is to be presumed that a cause
lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
reviewing a motion to dismiss for lack of jurisdiction under
Rule 12(b)(1), a court must review the complaint liberally,
granting the plaintiff the benefit of all inferences that can
be derived from the facts alleged. Barr, 370 F.3d at
1199. Nevertheless, “the Court need not accept factual
inferences drawn by plaintiffs if those inferences are not
supported by facts alleged in the complaint, nor must the
Court accept plaintiffs' legal conclusions.”
Speelman v. United States, 461 F.Supp.2d 71, 73
(D.D.C. 2006). A court may consider materials outside the
pleadings to determine its jurisdiction. Settles v. U.S.
Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005);
Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003). A court has “broad
discretion to consider relevant and competent evidence”
to resolve factual issues raised by a Rule 12(b)(1) motion.
Finca Santa Elena, Inc. v. U.S. Army Corps of
Eng'rs, 873 F.Supp.2d 363, 368 (D.D.C. 2012) (citing
5B Charles Wright & Arthur Miller, Fed. Prac. & Pro.,
Civil § 1350 (3d ed. 2004)); see also Macharia v.
United States, 238 F.Supp.2d 13, 20 (D.D.C. 2002),
aff'd, 334 F.3d 61 (2003) (in reviewing a
factual challenge to the truthfulness of the allegations in a
complaint, a court may examine testimony and affidavits). In
such circumstances, consideration of documents outside the
pleadings does not convert the motion to dismiss into one for
summary judgment. Al-Owhali v. Ashcroft, 279
F.Supp.2d 13, 21 (D.D.C. 2003).
Motion to Dismiss - Fed.R.Civ.P. 12(b)(6)
Rule of Civil Procedure 12(b)(6) requires a complaint to be
sufficient “to give the defendant fair notice of what
the claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). Although a complaint does not
need to include detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. The facts
alleged “must be enough to raise a right to relief
above the speculative level.” Id. A complaint
must contain sufficient factual matter to state a claim for
relief that is “plausible on its face.”
Id. at 570. When a plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged, then the
claim has facial plausibility. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. A court must treat the
complaint's factual allegations as true, “even if
doubtful in fact.” Twombly, 550 U.S. at 555. A
court need not accept as true legal conclusions set forth in
a complaint. Iqbal, 556 U.S. at 678.
provide three alternative arguments to support their motion
to dismiss. First, they argue the Court lacks subject-matter
jurisdiction “because Plaintiffs have not alleged
sufficient facts to establish that they have standing to
bring their lawsuit.” Mot. at 1. Second, they argue
that the Court lacks subject-matter jurisdiction because
Plaintiffs raise a political question that would require the
Court “to probe into sensitive and complex national
security decisions.” Id. at 2. Finally, they
move to dismiss under Rule 12(b)(6), arguing that Plaintiffs
have failed to state a claim upon which relief may be granted
because they “have not pled sufficient facts to
establish that the alleged unlawful actions have even
occurred.” Id. The Court will address each
argument in turn.