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Zaidan v. Trump

United States District Court, District of Columbia

June 13, 2018

AHMAD MUAFFAQ ZAIDAN, et al., Plaintiffs,
v.
DONALD J. TRUMP, President of the United States, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.

         Plaintiffs 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.

         I. BACKGROUND

         The 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.

         As part 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.

         Similarly, 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. ¶ 52.

         According 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), https://www.aclu.org/sites/default/files/fielddocument/presidentialpolicyguidance.pdf (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.

         Plaintiffs 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 law.”

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. 2004).

         On June 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.

         II. LEGAL STANDARDS

         A. Motion to Dismiss - Fed.R.Civ.P. 12(b)(1)

         Federal 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 jurisdiction”).

         When 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).

         B. Motion to Dismiss - Fed.R.Civ.P. 12(b)(6)

         Federal 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.

         III. ANALYSIS

         Defendants 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.

         A. Subject-Matter Jurisdiction

         1. ...


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