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Kareem v. Haspel

United States District Court, District of Columbia

September 24, 2019

BILAL ABDUL KAREEM, Plaintiff,
v.
GINA CHERI HASPEL, Director of the Central Intelligence Agency, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER, United States District Judge.

         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.

         After considerable time, due to multiple motions for extension of time and an extensive government shutdown, Defendants filed a motion to dismiss pursuant to the state secrets privilege on January 30, 2019. Mem. in Supp. of Defs.’ Mot. to Dismiss (Mot.) [Dkt. 24-1]. Mr. Kareem opposed. Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss (Opp’n) [Dkt. 27]. Defendants replied. Reply to Pl.’s Opp’n to Defs.’ Mot. to Dismiss (Reply) [Dkt. 28]. The motion is ripe for review.

         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. Shanahan, then-Acting Secretary of Defense, and Daniel R. Coats, then-Director of National Intelligence, submitted formal declarations, both public and in camera/ex parte, explaining that they are the individuals responsible for the relevant information and invoking the privilege. See Ex. 1, Mot., Public Decl. and Assertion of Military and State Secrets Privilege by Patrick M. Shanahan, Acting Secretary of Defense (Shanahan Decl.) [Dkt. 24-2]; Ex. 2, Mot., Decl. of Daniel R. Coats, Director of National Intelligence (Coats Decl.) [Dkt. 24-3]. Third, ...


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