Last week, President Trump and his supporters tried to stop electoral votes from being counted. Their arguments, while varied, eventually settled on one key claim: the “due process” rights of American voters were somehow being violated. I could not help but be struck by the irony. Today the Trump administration claimed that Americans can be stripped of due process rights — not to vote, but to life. The government’s argument? The reasons the US wants to assassinate Bilal, an American journalist who has been reporting from Syria, are so secret that they can’t possibly be aired in a courtroom.
When pressed by the court, the government asserted that it has the absolute right to order the assassination of an American citizen, any time, anywhere, including within the United States, and then claim that it is a state secret and its actions are unreviewable by any Court. Some of the judges indicated shock that such a wide power could be claimed, a claim never before made.
As long as the government contends the evidence is too secret to share then the Americans caught in the crosshairs are out of luck. And the rest of us just have to trust the President’s judgment with no role whatever for the courts. And as for the unlucky target? He can only try to duck.
Working on this case is a bit like watching the Tom Cruise movie Minority Report come to life. Bilal has spent the past decade working as a journalist in conflict zones. Since 2012 he has been based in Syria, where he has tried to cover all sides of the conflict, including that of the rebels the US at first supported and now calls terrorists. Whatever one’s views of that tragic quagmire, Bilal is not supporting anyone; he is doing his job.
Bilal’s approach, as he has explained, is simple: “I hope my work allows people to see and understand the perspectives of all those involved in this terrible conflict. It is only when we understand the other side that we can find ways to seek meaningful peace.”
Yet, it was those very interviews – and the signals to intelligence they generated – that may well have gotten him put on the ‘kill list’. In 2016 he was targeted no fewer than five times. The US fired missiles at his car twice while he was in it. They targeted the offices of his news agency. They even targeted him in an empty street shortly after he finished an interview.
These were not likely to be coincidences. The trial court agreed that he was plausibly being targeted, although at least one judge today asserted it was a war zone and there must be lots of targets in that region. Bilal had his car targeted twice while he was driving alone, had his office targeted, had a Hellfire cruise missile fired at him while he was near his office, and had another bomb blow up near him. Even during a civil war, it is highly unlikely that one man in one little village would be so precisely targeted on multiple occasions at multiple times solely within the fog of war.
Worried his government might succeed on the sixth try, Bilal sought help from the only place left for him to go – the US courts. His request to the court was not extraordinary. He did not ask the court to stop the US from firing missiles in Syria. Nor did he ask the court to rule that its well-advertised targeted assassination program, which most of the world sees as illegal, be stopped. Instead, he simply asked for due process — the right to be told whether he was being targeted; if so, why; and an opportunity to rebut that evidence.
The trial court judge initially agreed, calling due process "not merely an old and dusty procedural obligation” but instead “a living, breathing concept that protects US persons from overreaching government action even, perhaps, on occasion of war.” The Trump administration, unwilling to actually defend the decision to kill Bilal by producing evidence, then invoked the state secrets doctrine, claiming an absolute privilege not to produce evidence that bore on those issues. Without such evidence and a chance to rebut it, Bilal could not prove he was wrongly targeted and the case was dismissed. While the threats to Bilal’s life were frighteningly concrete, his due process right to defend it became entirely theoretical.
Today, the government did not even try to limit its argument to conflict zones. It asserted an unreviewable right to assassinate an American citizen anywhere in the word if it decides that to give details would reveal any state secrets. There are many, many state secrets.
The Trump administration claims that it has no obligation to confirm whether there is a ‘kill list’, whether Bilal is on it, and if so, why he is on it. To do so, even in a closed courtroom with classified procedures, would all jeopardize state secrets, they say. And so Bilal’s interests must yield to the interests of the national security state, even if the government is, as we claim here, wrong and can produce no competent evidence in his case.
The government claims the right to kill unilaterally and, if it is mistaken, to bury its mistakes.
Surely, the answer to this fundamental question must be that the government is not permitted to kill without any judicial input. A US citizen has a right to life; if Bilal were accused of a capital crime, he would be entitled to all evidence, even if classified. Here, the government wishes to proceed straight to execution without trial. Anything less than a hearing and an opportunity for a meaningful consideration by a neutral court of the evidence puts us in the company of the world’s dictators and despots and undermines the democratic ideals that are at the core of what make us Americans.
Eric Lewis is a lawyer working on Bilal’s case. He is also a board member of the company which owns The Independent
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