[00:00:01] Speaker 00: Case number 19-5328, Ahmad Muadhaq Zayden, Bilal Abdul Karim, appellant, versus Donald J. Trump, president of the United States at all. [00:00:12] Speaker 00: Ms. [00:00:12] Speaker 00: Plochacki for the appellant, Mr. Hinchelwood for the appellee. [00:00:17] Speaker 01: Ms. [00:00:17] Speaker 01: Plochacki, please proceed to your ready. [00:00:20] Speaker 03: Good morning, Your Honors, and may it please the court. [00:00:22] Speaker 03: This is a case of first impression in which the government has argued that it may designate a US citizen for execution without due process [00:00:30] Speaker 03: and insulate that decision from judicial review on the basis that it's a state secret. [00:00:35] Speaker 03: This represents a radical expansion of the state secret's privilege, and the Fifth Amendment's guarantee of due process forecloses the government's argument. [00:00:44] Speaker 03: Mr. Karim is a US citizen and a journalist. [00:00:47] Speaker 03: He has rights. [00:00:48] Speaker 03: They are justiciable. [00:00:50] Speaker 03: And the government does not have the discretion to bypass the Constitution by invoking a common law evidentiary privilege. [00:00:56] Speaker 03: Our position here is simple. [00:00:58] Speaker 03: An American citizen who demands due process upon discovery that he is a target of lethal action is entitled to notice of the basis for that action and an opportunity to challenge it. [00:01:09] Speaker 03: That is basic due process and no US court has permitted less when a US citizen has come before it. [00:01:15] Speaker 01: Can I just take you to the question of standing for a second before we get into the teeth of the state secrets issue? [00:01:22] Speaker 01: And on standing, [00:01:24] Speaker 01: One key consideration that's pointed to is that at least one of the alleged strikes was a Hellfire missile. [00:01:37] Speaker 01: And that's in the complaint at page 49, I'm sorry, paragraph 49, I think at JA 22. [00:01:42] Speaker 01: The vehicle of Kareem and his staff was struck and destroyed by a drone-launched Hellfire missile. [00:01:49] Speaker 01: which seems to be a significant fact, in your view, because it more explicitly links that attack, at least, to the possibility that was the United States. [00:01:58] Speaker 01: And then I just noticed in your brief at page nine that your opening brief, and it says, the strike came in the form of what appeared to be a Hellfire missile. [00:02:09] Speaker 01: And since it's a somewhat significant fact, whether it's a Hellfire missile, I'm just wondering why the brief frames it in terms of what appeared to be, rather than [00:02:18] Speaker 01: the allegation and the complaint that it is. [00:02:21] Speaker 03: Your Honor, our brief did not intend to depart from the facts alleged in the complaint. [00:02:25] Speaker 03: In terms of saying it appeared to be a Hellfire missile, of course, it's impossible with any kind of certainty without having had an opportunity to move to the merit stage to prove that it was a Hellfire missile. [00:02:38] Speaker 03: But Mr. Creme does allege that it was a Hellfire missile. [00:02:41] Speaker 01: So can I ask you this question? [00:02:43] Speaker 01: There are some issues about how fire missiles, the extent to which that indicates that it's the United States as opposed to it could be somebody else. [00:02:54] Speaker 01: But if we take that particular attack out of the field of vision just for arguments purposes, I understand that we're not taking it out, but let's just do it for arguments purposes, and what you have is the other four, would you still take the position that [00:03:06] Speaker 01: you've advanced past possibility to plausibility in terms of the United States being responsible for the missile attacks based on the other four alone. [00:03:16] Speaker 03: Absolutely, Your Honor. [00:03:17] Speaker 03: As we've alleged in our complaint, the United States uses signal intelligence and metadata in order to determine who to target for lethal action. [00:03:26] Speaker 03: In this case, the government has admitted that it conducts lethal strikes in Syria, that it was doing so during the time that Mr. Kareem was struck. [00:03:36] Speaker 03: Mr. Kareem uses signal-emitting devices, and he was struck [00:03:41] Speaker 03: in your hypothetical four times, then, with an incredible precision, not in the context of an ongoing battle, but four unique strikes, including two on his office, two on his vehicle, I think, are the ones that would be left in this area. [00:03:59] Speaker 05: It wasn't his office. [00:04:00] Speaker 05: It was his employer's office. [00:04:03] Speaker 03: Well, On the Ground Network is constructively Mr. Karim's operation. [00:04:08] Speaker 05: He's the only one? [00:04:09] Speaker 03: He's not the only person, no. [00:04:14] Speaker 02: Have you alleged that these were the only strikes made on those days? [00:04:20] Speaker 02: I don't see anything. [00:04:21] Speaker 02: You've painted a picture as if one missile hit on each one of these days. [00:04:27] Speaker 02: And I frankly think we could take judicial notice that in 2016, strikes were being conducted all over Syria. [00:04:38] Speaker 02: And certainly, [00:04:39] Speaker 02: including where Mr. Kareem was? [00:04:43] Speaker 03: Your Honor, that certainly is possible, but it doesn't mean that the U.S. [00:04:46] Speaker 03: didn't undertake these strikes on Mr. Kareem deliberately. [00:04:49] Speaker 03: That is, at the pleading stage, as you are well aware, Mr. Kareem is only required to allege one plausible version of facts. [00:04:58] Speaker 03: The government is attempting to challenge the merits of our allegations. [00:05:05] Speaker 03: We'll have an opportunity to do that and discovery if the government wants to prove that it was not the United States or that it was some other actor, it can do so. [00:05:13] Speaker 03: But the facts as alleged must be taken as true at this juncture. [00:05:17] Speaker 02: We can't ignore reality. [00:05:21] Speaker 02: And frankly, it seems to me a spectacular delusion of some sort of grandeur that your client thinks that the United States was aiming for him [00:05:33] Speaker 02: when bombs and drones and missiles were hitting all over that country, and millions of people were fleeing for their lives. [00:05:44] Speaker 03: But, Your Honor, in June of 2016, there are no other facts on the record that suggest that there were a flurry of drone strikes occurring in that month. [00:05:54] Speaker 02: That would require- I go back to my question. [00:05:56] Speaker 03: Do we ignore reality? [00:05:59] Speaker 03: Your Honor, we don't ignore reality, but I think at this juncture, reality for June of 2016 in Aleppo, Syria has not been established on this record. [00:06:09] Speaker 03: And so it would require incorporating into the complaint facts that have not been alleged by Mr. Karim and certainly facts that have not been raised by the government. [00:06:18] Speaker 03: In fact, the government's attempt to undermine the plausibility of Mr. Karim's claim [00:06:22] Speaker 03: only shows that it's more plausible that he was targeted by the United States. [00:06:27] Speaker 03: The government says, for instance, well, the Assad regime executes journalists, but it doesn't say so that it did it by drone strikes. [00:06:36] Speaker 03: It also says that the Assad regime uses drones indiscriminately. [00:06:42] Speaker 03: But indiscriminate strikes is not what happened to Mr. Kareem here. [00:06:45] Speaker 03: These happened with eerie precision, and that's what's pleaded in our complaint. [00:06:50] Speaker 05: Now, if there were more facts on the record- Do you dispute that during June, July, and August of 2016, Idlib province and Aleppo were under almost a daily- I'm sorry, Judge Millett, I can't understand what you're saying. [00:07:09] Speaker 05: Do you dispute that in June, July, and August of 2016, these particular parts of Syria in particular, [00:07:17] Speaker 05: Aleppo and Idlib, I think it's a province, were subject to routine and severe bombings? [00:07:31] Speaker 03: I have no basis to confirm that fact. [00:07:33] Speaker 03: I do know, of course, as does Mr. Crane, that Syria was at civil war and that strikes were undertaken, including the five on him. [00:07:40] Speaker 05: All right. [00:07:42] Speaker 05: Like Judge Henderson, I remember the news, right? [00:07:47] Speaker 05: Russia had come in at this point and there were [00:07:50] Speaker 05: a lot of countries that were doing a lot of bombing and Aleppo and inland province were particularly being torn apart that summer and we're going, I think you say one of the bombs happened in an area that had just switched control. [00:08:03] Speaker 05: They were going back and forth in control. [00:08:05] Speaker 05: Now, if they're going back and forth in control between government and rebel forces, that means there's a very active war zone. [00:08:13] Speaker 05: And, and I get you, I just I was surprised that you or your client wouldn't be familiar with that so that you're not able to. [00:08:21] Speaker 05: So I guess you dispute, which is what the on the ground reality in this part of the world was that summer. [00:08:28] Speaker 03: No, Your Honor, we did not dispute that there were drone strikes undertaken in Syria. [00:08:32] Speaker 05: Drones and bombs. [00:08:34] Speaker 03: And bombs, it was a civil war zone, indeed. [00:08:36] Speaker 05: And this particular area was an intense, an area of intense fighting. [00:08:40] Speaker 05: As you said, as you allege as to one of them, it had just switched from government to rebel or rebel to government control. [00:08:48] Speaker 03: But I think the thing to remember in this case, Your Honor, as pleaded in the complaint, [00:08:53] Speaker 03: We set forth facts that show that Mr. Kareem was the target of these strikes. [00:08:58] Speaker 03: That is, they hit his vehicle. [00:09:00] Speaker 05: You're alleging he was in the vicinity of the strikes. [00:09:04] Speaker 03: I believe that we allege they hit his office twice and his vehicles twice. [00:09:11] Speaker 03: And that belies the notion that the strike was going after some other thing. [00:09:19] Speaker 03: You know, the fact that these landed on Mr. Kareem four times in June and once in August. [00:09:26] Speaker 03: Taken together, this is evidence that suggests that Mr. Creme was the target. [00:09:31] Speaker 03: Moreover, Mr. Creme was also engaged in activities that would suggest to metadata that he may have been involved in hostile activity. [00:09:39] Speaker 05: What do you mean by metadata? [00:09:40] Speaker 05: You use that a lot. [00:09:42] Speaker 05: The metadata that was referenced in the quotation you have was telephone metadata, which is not conversations, but who called who when. [00:09:53] Speaker 05: That's right, Your Honor. [00:09:54] Speaker 05: I don't understand what the connection here is. [00:09:59] Speaker 03: The former director of the CIA, General Michael Hayden, says that we kill people based on metadata. [00:10:05] Speaker 03: And we understand that to mean, based on public documents, that this is signal intelligence. [00:10:09] Speaker 03: That is, the US uses devices that can track a cell phone's movements. [00:10:13] Speaker 03: Now, Mr. Kareem moved back and forth, interviewing rebels. [00:10:17] Speaker 05: I don't think tracking a cell phone's movements is metadata. [00:10:22] Speaker 05: That's just a cell tower thinking. [00:10:26] Speaker 03: I think it depends on what's being used to track the cell phone's movements. [00:10:30] Speaker 05: I didn't understand your connection with the metadata at all, because it was talking about a very different context. [00:10:36] Speaker 05: And it never said we kill US citizens with metadata. [00:10:40] Speaker 03: That's exactly the point. [00:10:43] Speaker 03: Your honor is exactly landed on the point that's of concern here. [00:10:46] Speaker 03: We're concerned with the erroneous deprivation of Mr. Kareem's life on the basis of signal intelligence that may have misinformed the US government about who exactly it had picked up. [00:11:00] Speaker 05: What do you mean on the basis of signal intelligence? [00:11:03] Speaker 03: Signal intelligence, that is, if there is intelligence being conducted, which we have pleaded in the complaint that there are programs such as Skynet that are able to latch onto a cell phone and follow someone wherever they go. [00:11:15] Speaker 03: That's how they determine who's a courier. [00:11:18] Speaker 03: Had this been used for Mr. Kareem, it would see that he had gone to various rebel outposts and interviewed people. [00:11:25] Speaker 03: Now, to someone who doesn't know that that's a US journalist conducting interviews and then publishing them, [00:11:30] Speaker 03: that could look very suspicious. [00:11:32] Speaker 03: It's our contention that he was picked up by the signal intelligence, and it gave intelligence officers or agency heads the wrong impression about who he is. [00:11:42] Speaker 03: And in keeping with the concerns that animated Matthews versus Elbridge and Lockett v. Ohio, where there's a risk of erroneous deprivation of a person's life or liberty interests [00:11:58] Speaker 03: Those interests must be addressed in a manner which affords that person due process. [00:12:03] Speaker 03: And that's all we're seeking here. [00:12:04] Speaker 05: The complaint alleges some bombings in June and August or July and August. [00:12:11] Speaker 05: And then seven months elapsed before the complaint is filed without any allegation of any attempted attacks at all. [00:12:21] Speaker 05: And we now know that four years have gone by with no attacks. [00:12:25] Speaker 05: And a complaint for injunctive relief. [00:12:29] Speaker 05: Doesn't the plausibility standard require some showing that there's still a plausible risk of ongoing attacks? [00:12:41] Speaker 05: Seven months or four years by the time a court or longer by the time a court would get around to looking at an injunction. [00:12:47] Speaker 05: If you're pleading for an injunction, you have to show some current risk at the time. [00:12:50] Speaker 05: And seven months have gone by with nothing happening. [00:12:54] Speaker 03: Well, Your Honor, we are not privy to how long the government takes to execute someone who is on the kill list. [00:13:01] Speaker 03: In the case of Mr. Amaral Alaki for example, we know that his designation was made sometime before 2010 and that he was killed in 2011. [00:13:11] Speaker 03: There was at least a year that went by before the government executed him. [00:13:21] Speaker 03: During the pendency of this litigation, it's true that the government has not undertaken a drone strike on him. [00:13:28] Speaker 05: I'm talking about the seven months before the complaint was filed. [00:13:32] Speaker 05: You can't blame that on the pendency of the litigation. [00:13:36] Speaker 03: Of course. [00:13:36] Speaker 03: Your Honor, in that case, I would say that based on the example that we're aware of, [00:13:42] Speaker 03: Where the government is targeted us citizen seven months appears to be a reasonable and even smaller amount of time than it has taken in the past when undertaking to execute someone on the kill list. [00:13:55] Speaker 05: Okay. [00:13:55] Speaker 05: And then My understanding is that Mr. Kareem has disappeared, but he was going to be taken by a terrorist group in Syria. [00:14:04] Speaker 05: For purposes of a complaint seeking injunctive relief, if you know otherwise, tell me. [00:14:08] Speaker 05: Seeking injunctive relief, do we need to know whether he's in a position to benefit from it? [00:14:18] Speaker 05: What would you do about the fact that he seems to have been either taken hostage or, you know, I hate to suggest the worst, but one has to think about that. [00:14:28] Speaker 03: Your Honor, we have no reason to believe that Mr. Kareem has been killed. [00:14:32] Speaker 03: Well, we do understand that he is in the custody of a rebel group. [00:14:37] Speaker 03: We don't think that allays any concerns about whether or not he is on the kill list. [00:14:42] Speaker 03: There's nothing to say that when he is released that the U.S. [00:14:46] Speaker 03: won't resume its attempt on his life. [00:14:49] Speaker 03: Moreover, the fact that he is in the same place [00:14:52] Speaker 03: makes it, it would think, easier to target him for death. [00:14:57] Speaker 03: But finally, I would say that if the government, if there's a mootness issue, the government can clarify that for us. [00:15:04] Speaker 03: It has the option to say, we don't intend to kill Mr. Karim. [00:15:08] Speaker 03: And if it does so, this entire case goes away. [00:15:11] Speaker 03: And its resistance to doing so is what prevents us from abandoning this action. [00:15:17] Speaker 05: That's a different point than what I was asking. [00:15:19] Speaker 05: So I don't. [00:15:21] Speaker 05: Is he in a position where he could participate in a process that he requests this process to clear his name. [00:15:29] Speaker 03: Is there any way that he could participate in that Your Honor, if the government were to call him for deposition next week, we would have difficulty accommodating that request. [00:15:39] Speaker 03: But we don't have any reason to believe that. [00:15:44] Speaker 05: I'm just asking a very intentional practical question. [00:15:46] Speaker 05: Could the proceeding that he wants out of this litigation go forward at this time, or do we need to wait? [00:15:53] Speaker 03: Your Honor, I believe the proceeding can go forward. [00:15:55] Speaker 03: He has representation. [00:15:57] Speaker 03: We have authority to proceed on his behalf. [00:16:00] Speaker 03: And when he is released from custody, if his testimony or something else is needed, he can willingly provide it. [00:16:09] Speaker 01: Can I ask you a question about the constitutional claims that are raised? [00:16:12] Speaker 01: So you have a Fourth Amendment claim in your complaint as to which the allegation is that there was an unlawful seizure? [00:16:20] Speaker 03: Yes, Your Honor. [00:16:21] Speaker 01: Is that right? [00:16:22] Speaker 01: And is the argument there that there's a seizure by virtue of being allegedly put on the kill list? [00:16:32] Speaker 03: Yes, Your Honor. [00:16:33] Speaker 01: And would that mean that you could bring a habeas claim? [00:16:39] Speaker 01: So in other words, if you've been seized, and part of where I'm going with this is that there is a line in Reynolds that says we draw a divide between criminal and civil cases. [00:16:48] Speaker 01: And one of the issues that's at the core of the viability of the state secrets privilege and what its implications are for this case is that, do we treat this as a typical civil case, or do we treat that as something different from a civil case that's on the order of a criminal case, which is sort of your argument? [00:17:08] Speaker 01: And I'm just wondering. [00:17:09] Speaker 01: Like in Doe versus Mattis and Hamdi, those were habeas cases. [00:17:14] Speaker 01: And if you've got a Fourth Amendment seizure argument, could you bring a habeas petition? [00:17:20] Speaker 03: Governor, I don't think that would be the most appropriate claim in this posture, because he's not in the custody of the United States yet. [00:17:27] Speaker 03: In fact, the US has chosen to bypass prosecution and the normal custodial [00:17:32] Speaker 03: pre-trial detention and instead move straight to summary execution. [00:17:36] Speaker 01: So there's a gap between, I mean, if there's a seizure, the seizure is at the hands of the United States. [00:17:39] Speaker 01: It's not at the hands of somebody else. [00:17:41] Speaker 01: Right. [00:17:42] Speaker 01: But there's a gap between an allegation that someone's been seized and the allegation that someone's in custody. [00:17:50] Speaker 03: I think that's correct, Your Honor. [00:17:53] Speaker 05: What if he was under a death sentence but released on his own recognizance? [00:18:00] Speaker 05: Isn't that effectively what, under your view, is going on here? [00:18:05] Speaker 03: Correct, Your Honor. [00:18:06] Speaker 03: But presumably, in the case where there would be a death sentence, he would have enjoyed the due process to which he's entitled. [00:18:14] Speaker 03: He has not had the benefit of that. [00:18:15] Speaker 05: No, I'm just for purposes of Chief Judge Rene Besson's habeas, that you could bring a habeas action. [00:18:20] Speaker 05: Because you essentially say, I am under a death sentence. [00:18:23] Speaker 05: This is your theory, as I understand it. [00:18:24] Speaker 05: A deeply unconstitutionally imposed death sentence would be your argument. [00:18:28] Speaker 05: Because I got no judicial process at all. [00:18:31] Speaker 05: Correct. [00:18:32] Speaker 05: No charge even. [00:18:33] Speaker 05: And the fact that I'm out on my own, my cognizance, I'm out on walking around on my own doesn't mean I can't still challenge that executive-imposed death sentence. [00:18:47] Speaker 03: Your Honor, he has challenged the executive-imposed death sentence. [00:18:51] Speaker 05: In habeas. [00:18:51] Speaker 05: In habeas. [00:18:52] Speaker 05: He's seized by the government. [00:18:55] Speaker 05: And he wants to be seized and this death sentence follows him wherever he goes under your theory. [00:19:02] Speaker 05: And he's constantly subject to it. [00:19:05] Speaker 05: He couldn't do a habeas action. [00:19:08] Speaker 03: I suppose it's possible that he could do a habeas action, but that doesn't foreclose the relief that he's seeking here. [00:19:15] Speaker 03: He's chosen to bring a Fifth Amendment claim as well. [00:19:18] Speaker 03: And it's on that basis that he is insisting on disclosure of the basis for [00:19:25] Speaker 03: the designation on the kill list and an opportunity to challenge it. [00:19:29] Speaker 03: And so in this posture, the relief that he seeks is perfectly available to him. [00:19:34] Speaker 03: And the formalistic docketing distinction between civil and criminal is not dispositive of the relief to which he's entitled. [00:19:41] Speaker 03: In fact, in US versus Reynolds, the court said that it would be unconscionable to allow someone who faced potential deprivation of liberty not to have the evidence against him. [00:19:51] Speaker 03: The same concerns, of course, animated Roviaro versus United States, in which the court said that the privilege must give way when the defense requires the evidence. [00:20:03] Speaker 03: The privilege has also given away classified information. [00:20:10] Speaker 01: If he brought up civil action and saw damages on the theory that being [00:20:16] Speaker 01: on allegedly being on the alleged list causes ongoing distress and for which compensation is owed, then would you say that it's a formalistic distinction between civil and criminal? [00:20:32] Speaker 03: I would say that would be a civil claim in which the case precedent clearly establishes that relief would not be allowed. [00:20:38] Speaker 03: This is different. [00:20:38] Speaker 03: He's seeking a Fifth Amendment life and liberty interest here. [00:20:42] Speaker 03: He's not looking for damages. [00:20:43] Speaker 03: And in fact, that's something that I think distinguishes our case from other state secret cases that are civil. [00:20:50] Speaker 03: In this case, he is seeking to interpose himself into a process [00:20:54] Speaker 03: that has resulted in his death sentence. [00:20:57] Speaker 03: It's very clear from case precedent that when these kinds of concerns animate the interest of issue, that due process must be afforded. [00:21:06] Speaker 03: And that includes cases where national security is involved. [00:21:10] Speaker 03: In Hamdi versus Runfeld, a plurality of the Supreme Court said, it would turn our system of checks and balances on its head if a US citizen who came to a court [00:21:20] Speaker 03: couldn't avail himself of his due process rights. [00:21:23] Speaker 03: And that's all we're really seeking here. [00:21:25] Speaker 03: As you well know, the court reaffirmed that Ndoe versus Mattis, a US citizen, is entitled to his rights even on a battlefield. [00:21:32] Speaker 03: And so in a case where Mr. Kareem's life is at stake, those rights are even more acute than they are when a liberty interest is at stake. [00:21:44] Speaker 01: Let me make sure my colleagues don't have additional questions for you before we hear from the government and we will give you some rebuttal time. [00:21:53] Speaker 02: Thank you. [00:21:53] Speaker 02: I don't. [00:21:54] Speaker 01: Okay, thank you. [00:21:55] Speaker 01: Let's hear from the government now and we'll give you some rebuttal time, Ms. [00:21:58] Speaker 01: Polanski. [00:22:00] Speaker 01: Mr. Hanchelwood. [00:22:01] Speaker 06: Good morning, Your Honors, and may it please the Court, Brian Edgewood for the government. [00:22:06] Speaker 06: I'd like to start where the Court started, which is withstanding in this case. [00:22:11] Speaker 06: Mr. Cream has not alleged any facts that would actually link not only the United States to the specific attacks described in the complaint, but much less that Mr. Cream is the actual target of those attacks. [00:22:24] Speaker 06: And we think that's claimed just from looking at the terms of the complaint itself, which are framed extremely generally with no specific linkage to the United States at all, and really resolve to a claim that anyone who has an electronic device who's sort of generating signals and is in the proximity of both explosions and [00:22:47] Speaker 06: rebels is therefore plausibly alleging they've been targeted by the United States. [00:22:52] Speaker 01: So does the hellfire – the allegation of a hellfire missile bring it closer to the United States? [00:22:58] Speaker 06: It's certainly true that the United States, that's a missile system used by the United States. [00:23:02] Speaker 06: As you pointed out, it's not at all clear what the basis for that is. [00:23:05] Speaker 06: In the reply brief at page 10, I point out they say, well, Mr. Cream inferred that on the basis of the strength of the explosion. [00:23:16] Speaker 06: Just because of its strength and the damage it caused. [00:23:20] Speaker 06: So again, even if that allegation is sort of the lone allegation that brings this any closer to the United States, [00:23:28] Speaker 06: The strength of the inferences that can be drawn from that allegation are not [00:23:34] Speaker 06: particularly impressive, nor does it exclude the possibility of other actors being the relevant actors in this circumstance, given the context in which all of this is occurring. [00:23:45] Speaker 06: And you're talking about a nation that is wracked by civil war. [00:23:49] Speaker 06: And as some of the court's questions pointed out earlier, there's talking about areas sometimes where control has just changed hands, right? [00:23:58] Speaker 06: Where there are other organizations that may have an interest in [00:24:03] Speaker 06: engaging in strikes in a particular area. [00:24:06] Speaker 01: So can I ask, is your argument on the fact that we haven't crossed the line from possibility to plausibility, is it based on the notion that yes, there's enough here to say that he was being targeted, but it's not clear by whom? [00:24:21] Speaker 01: Or is it that there's not enough here to show that he was being targeted because there's just a lot of activity in the area during this time? [00:24:29] Speaker 01: And so even though you have what the plaintiff alleges is more than a random coincidence because it's five attacks that are on or very close by, that's still not enough because of the degree of bombings that were taking place in the area during this two to three month period. [00:24:46] Speaker 06: To be clear, we think it's both that he hasn't alleged the United States was involved in these attacks and that he hasn't alleged enough to show that he was actually the target of these attacks. [00:24:56] Speaker 06: And even without considering sort of the fact that these are areas of active hostilities, you can just from the allegations in the complaint see, you know, [00:25:05] Speaker 06: Mr. Creams not the only individual present for any of these strikes or any of these attacks, right? [00:25:11] Speaker 06: So two of them are alleged to have hit a building which contains the on the ground network offices, apparently among other things. [00:25:17] Speaker 06: We're told the OGN office is in the basement and that, you know, there's more to the building than just that. [00:25:24] Speaker 06: In other circumstances, he's interviewing people, he's sitting in a truck with numerous other individuals, he's on a street, he leaves the street, and then when he comes back, there's just been an attack. [00:25:39] Speaker 06: So in all of these circumstances, [00:25:41] Speaker 06: You know, he's not even the only person present, much less, is there anything to suggest that he's actually the target of any of these specific attacks? [00:25:50] Speaker 06: And that's, you know, before we even get to the fact that we know that, you know, look, Syria is obviously engaged in an ongoing civil war, was in 2016 and continues to be to this day. [00:26:02] Speaker 06: And that obviously plays a role in the sort of context-dependent inquiry that this court has to engage in for assessing the plausibility of allegations in a complaint. [00:26:13] Speaker 06: And so given the lack of any factual matter that connects the United States to these attacks or suggests that Mr. Cronin... Well, can I back up there just to... Let's assume it was a hellfire missile. [00:26:25] Speaker 05: We'll take that fact or inference in the light most favorable to the plaintiff here. [00:26:30] Speaker 05: Does that tie it to, you've got your other arguments, but I just want to know, does that tie it to the US having done that bombing run, put aside the target issue? [00:26:41] Speaker 06: Right, so it wouldn't link the United States to any of the other four, first of all. [00:26:45] Speaker 06: That's not my question. [00:26:46] Speaker 06: It would make it somewhat more likely that the United States was involved in that specific attack. [00:26:57] Speaker 05: How do we know that other entities or governments that were engaged in bombing in this area that were using hellfire missiles? [00:27:08] Speaker 06: There's really no allegation the United States is the only entity that uses missiles of that type. [00:27:13] Speaker 06: So even if, again, crediting the idea that just based off the strength of the explosion, we can conclude that this was a Hellfire missile. [00:27:22] Speaker 06: Even if you credit that, it doesn't necessarily lead to the conclusion or certainly doesn't compel the conclusion and we don't think plausibly. [00:27:30] Speaker 05: It compels not the test here. [00:27:32] Speaker 05: I understand. [00:27:34] Speaker 05: The move on this this narrow question of whether that one bombing run was conducted by the US, does it move that specific factual allegation from possibility to plausibility because it was a Hillfire missile? [00:27:51] Speaker 06: I don't think it would move it even to plausibility, but that's, of course, because your question has assumed that we're setting aside the question of whether in that particular attack, Mr. Kareem was the target. [00:28:02] Speaker 06: Right. [00:28:02] Speaker 05: So even if you just I'm just I really would like a straight answer on does [00:28:09] Speaker 05: On the narrow fact of whether that was a U.S. [00:28:12] Speaker 05: bombing run, which there are other facts that have to be added in, let's put those aside, just on whether that was a bombing run by the U.S., does crediting the allegation that it was a hellfire missile move that particular factual allegation that was conducted by the U.S., a bombing run conducted by the U.S., from the realm of possibility into plausibility? [00:28:34] Speaker 05: And if not, why not? [00:28:36] Speaker 06: I think where there's no allegation and couldn't be, frankly, an allegation that the United States is the exclusive user of this particular type of weapon. [00:28:46] Speaker 05: The exclusive user in that area. [00:28:48] Speaker 05: Of course, that's what's relevant is the exclusive user in that area at that time. [00:28:52] Speaker 06: There's also no allegation to that effect either. [00:28:58] Speaker 06: If there were an allegation of that type, again, you might be inching closer with each sort of piece of specificity you could provide. [00:29:04] Speaker 05: I mean, I think they definitely alleged that's why they that's their evidence that that was the US that did it because this is their bomb. [00:29:14] Speaker 06: Right, based on the strength of the explosion, he assumes it was a Hellfire missile that was launched from the ground. [00:29:23] Speaker 06: Right, assuming the full chain of inferences that gets you to that point. [00:29:29] Speaker 06: then it's certainly more likely at that point that that specific allegation would get you to the claim that the United States engaged in that particular attack. [00:29:38] Speaker 06: There's no question it makes it more likely. [00:29:40] Speaker 06: Now, whether or not it makes it plausible, our position would be still no in that circumstance, given the lack of allegations that support anything more here. [00:29:50] Speaker 06: But of course, your question has assumed and asked me to set aside [00:29:54] Speaker 05: Yeah, I'm aware all that other stuff is there. [00:29:57] Speaker 05: Absolutely. [00:29:57] Speaker 05: I wonder what to do with the Hillfire allegation. [00:30:00] Speaker 06: Well, Your Honor, even there, I think the simplest way to deal with it is if you think that would suffice for plausibility at the pleading stage to show that the United States engaged in that particular strike. [00:30:11] Speaker 06: And we've discussed, you don't think that's right. [00:30:14] Speaker 06: But if you think that's true, then he would still have to show plausibly that he was the target of that one particular attack. [00:30:21] Speaker 06: And there's nothing alleged that supports that inference. [00:30:24] Speaker 06: We know for a fact there are other individuals present. [00:30:27] Speaker 06: He talks about there's another truck from on the ground network sitting nearby. [00:30:31] Speaker 06: They're there for other, yeah, to engage in sort of whatever journalistic activities they were there to engage in. [00:30:41] Speaker 06: So there are other individuals in the area. [00:30:43] Speaker 06: So to suggest that that's, [00:30:46] Speaker 06: plausible an allegation that he's been targeted by that particular attack, there's nothing to support that either. [00:30:51] Speaker 02: And there's no allegation that this was the only Hellfire missile on that particular day. [00:30:56] Speaker 02: In other words, there could have been 20 of them dropping. [00:31:01] Speaker 06: So there's no sort of information provided in the complaint about- As far as targeting, that's what I'm talking about, the targeting. [00:31:12] Speaker 06: Right, I mean, all we're told in the complaint is just specifically that, you know, he was there, he saw a drone at some time before the explosion. [00:31:21] Speaker 06: Sometime later, there was an explosion, which he assumes to be from a Hellfire missile because of the strength of that explosion. [00:31:30] Speaker 06: And that's the sum and substance of the allegations there. [00:31:36] Speaker 06: We don't have any other additional information on that score. [00:31:40] Speaker 01: Can I take it to the state secrets question for a second, unless there's further questions on standing? [00:31:48] Speaker 01: So on state secrets, it seems to me a lot of the force of the state secrets assertion made by the government here and what effect it has on the case turns on whether we treat this as a civil case or a criminal case, or as something that is somewhere in between, but for various considerations, we ought to give it [00:32:08] Speaker 01: rubric of one or the other. [00:32:10] Speaker 01: And what do we do with a situation in which it's not a garden variety civil case because it's not seeking ex post compensation for a civil wrong that was imposed at prior time. [00:32:21] Speaker 01: It's also not a garden variety criminal case because the government's not seeking to prosecute somebody. [00:32:27] Speaker 01: But it is a situation in which the allegations are that someone's been placed on a list for targeted killing by the United States. [00:32:36] Speaker 01: And so that is a context in which there's United States authority being visited on somebody in the nature of a criminal, the consequence of a criminal proceeding if it were a capital case. [00:32:51] Speaker 01: And what, so does it seem fair to you then just to treat that as a garden variety civil case given that this is the context we're talking about? [00:33:01] Speaker 06: I think it makes sense to treat it as a civil case for a couple of reasons. [00:33:05] Speaker 06: One is that [00:33:06] Speaker 06: What this court has recognized and what the Supreme Court has explained in Reynolds is that there are important differences between civil and criminal cases, and that the initiating party in these cases matters in significant ways. [00:33:19] Speaker 06: And that's not to dispute that Mr. Creme has an important interest in these cases, but as this court has explained in cases like Halkin II, where what [00:33:30] Speaker 06: The plaintiff is essentially asking the court to do is balance the importance of their own interest against the government's interest in maintaining state secrets. [00:33:39] Speaker 06: That's not an appropriate inquiry for application of the privilege. [00:33:42] Speaker 06: That inquiry goes to the sort of detail and the care with which the district court is required to scrutinize the government's indication of the privilege, because the privilege itself is absolute. [00:33:55] Speaker 06: And that's because, as I was referencing a moment ago, [00:33:58] Speaker 06: When the government is sued, it doesn't have the same control over the case that it does when it brings a criminal prosecution. [00:34:07] Speaker 06: The rationale of those cases, as Reynolds explains, is that there, in the criminal cases, the government has the ability to protect information and to make judgments in the course of charging those cases and prosecuting those cases. [00:34:24] Speaker 06: that it cannot make when it's brought to suit by another plaintiff. [00:34:31] Speaker 06: So in these circumstances, what, you know, and I think Mr. Cream's reply brief is very honest about this, it's simply asking, I want you to balance [00:34:39] Speaker 06: my interest against the government's interest and create a new rule, that's exactly what this court has said in cases like Hawken, you don't do. [00:34:47] Speaker 06: That the privilege exists and it applies in these circumstances and that it goes to the way we scrutinize the claims, the claim of privilege. [00:34:55] Speaker 06: And the district court here did that, said it was carefully examining the government's declarations to determine whether the occasion for invoking the privilege was appropriate. [00:35:05] Speaker 06: it correctly made that determination for all the reasons we've explained and that are apparent, I think, both from the public and the classified declarations. [00:35:13] Speaker 06: And in that circumstance, the privilege applies. [00:35:15] Speaker 06: That's how the privilege operates in these cases. [00:35:19] Speaker 01: So one response to that is that it's not the classic situation in which the government's just responding to a lawsuit that's brought against it, because the offensive move that the government made is in the allegation that it put [00:35:35] Speaker 01: Kareem on the list. [00:35:38] Speaker 01: And then once Kareem, and we take that allegation to be true for present purposes, once that has happened, then there's no, it's not as if it's an off, it's a responsive offensive case to then bring a civil suit. [00:35:52] Speaker 01: It's just that this is all I have left to do. [00:35:54] Speaker 01: I got to figure out some way to try to extricate myself from this predicament I'm in, because I think it's just wrongly founded. [00:36:03] Speaker 06: I mean, I think the same type of move could be made as to any sort of claim that seeks perspective relief. [00:36:10] Speaker 06: So if, for example, somebody thought they were a target of surveillance and didn't believe that surveillance was appropriate, you know, in that circumstance, they could come in and say, well, you know, the government has made the first move. [00:36:19] Speaker 06: It started to surveil me. [00:36:21] Speaker 06: And in this context, all I can do is bring a civil suit. [00:36:24] Speaker 06: So, you know, please. [00:36:26] Speaker 05: Let's just say death is different, as the Supreme Court has said many times, and the government's actually trying, taking the allegations here, there's two, the government's actually trying to kill him. [00:36:36] Speaker 05: What's he supposed to do? [00:36:37] Speaker 05: And let's say the government's made, hypothetically, as he says, a serious mistake. [00:36:43] Speaker 05: What is he supposed to do? [00:36:45] Speaker 06: We are in that circumstance. [00:36:47] Speaker 06: It's not that the state secrets privilege would no longer apply, because again, the type of [00:36:53] Speaker 06: the seriousness of the interest. [00:36:55] Speaker 06: And again, no one's disputing the seriousness of Mr. Creme's interest is the way it functions under the privilege is to calibrate the inquiry. [00:37:06] Speaker 06: But as this court explained in Halpin as well, when there are [00:37:11] Speaker 06: you know, allegations of serious, you know, issues that can't be addressed as a result of the invocation to state secrets privilege, the correct recourse is to the political branches, right, is to, you know, ask Congress to engage in some sort of creation of a process, something like that. [00:37:28] Speaker 05: It's not- Sorry, he's supposed to be trying to get a bill passed, and then the executive branch would say Congress can override the executive branch's judgment about state secrets. [00:37:39] Speaker 05: That's your position? [00:37:41] Speaker 06: are exactly the contours of what Congress could or could not do in this area? [00:37:45] Speaker 05: No, no, no, no, no. [00:37:46] Speaker 05: Come on. [00:37:47] Speaker 05: Come on. [00:37:47] Speaker 05: So if you're targeting me to kill me without any process, and let's say I've gotten past standing, my car keeps blowing. [00:38:01] Speaker 05: I'm here in the US, and my car keeps blowing up, and I keep getting shot at. [00:38:05] Speaker 05: And I say the only explanation for this is I'm on a kill list by the US government. [00:38:11] Speaker 05: And let's also assume hypothetically that I actually am on a kill list by the US government. [00:38:17] Speaker 05: And the government's position is tough luck. [00:38:22] Speaker 05: You have no rights. [00:38:25] Speaker 05: You have no capacity to get yourself off that list. [00:38:28] Speaker 05: I mean, you can write letters to the government. [00:38:33] Speaker 05: That's it. [00:38:33] Speaker 05: The government may execute me. [00:38:37] Speaker 05: and there's nothing anyone I can do to stop it or anyone can do about it. [00:38:42] Speaker 06: I think it's important to tease apart two different things that I think are in your question. [00:38:47] Speaker 06: So one is, I think part of your question is getting to some of the political question doctrine issues in this case, which- I'm just asking, is that your position that there's nothing I can do about it? [00:38:57] Speaker 05: That's just a bottom line question. [00:39:01] Speaker 06: An individual in Mr. Kareem's position? [00:39:04] Speaker 05: My position. [00:39:05] Speaker 05: I'm on the kill list under this question. [00:39:07] Speaker 06: Okay, so an individual on the kill list, you know, hypothetical kill list overseeing. [00:39:12] Speaker 05: No, no, no, under my hypothetical, I am actually on the kill list. [00:39:15] Speaker 05: I don't, I suspect I am, and it turns out I am. [00:39:19] Speaker 06: Okay, in that circumstance, whether the government, both for reasons of a court's competence to adjudicate those kinds of questions, which gets to the political question issues, and the court's ability to adjudicate claims where the government has properly invoked the state secret's privilege and a court has [00:39:37] Speaker 06: properly determined that the government has invoked that privilege. [00:39:40] Speaker 05: So the answer is there's nothing I can do about it. [00:39:43] Speaker 06: There's no recourse you can get from the court. [00:39:44] Speaker 05: There's no difference between my, for your political question theory. [00:39:47] Speaker 05: There's no difference between me and Mr. Kareem. [00:39:51] Speaker 06: If we're talking about, you know, a U.S. [00:39:56] Speaker 06: citizen who is in Syria. [00:39:57] Speaker 05: No, no, no, no. [00:39:59] Speaker 05: I don't understand why for political question. [00:40:01] Speaker 05: There's nothing in your briefing that says it turns on his location. [00:40:05] Speaker 05: So I'm extending it to someone on US soil. [00:40:09] Speaker 05: Nothing in your briefing turns on where his location is at all. [00:40:13] Speaker 05: If that's a factor now, you can tell us. [00:40:16] Speaker 05: But I assume it's not for state secrets. [00:40:18] Speaker 06: Certainly not for state secrets, no. [00:40:20] Speaker 05: All right, so you would still argue a political question just as you do here, and you would argue state secrets just as you do here. [00:40:28] Speaker 05: And if we rule for you, that means I'm hosed. [00:40:32] Speaker 05: Nothing I can do about this death sentence. [00:40:34] Speaker 06: Certainly as to the state secrets privilege, the what that the invocation of the privilege in this particular case means that the case cannot proceed. [00:40:43] Speaker 06: Now, again, whether that could be any. [00:40:45] Speaker 05: No, no. [00:40:46] Speaker 05: What difference. [00:40:48] Speaker 05: What difference is it me rather than Mr. Cream and I'm here in the US. [00:40:54] Speaker 06: I'm sorry, I don't want to suggest that there's [00:40:57] Speaker 06: Just to speak about how the privilege applies in these cases, if your question is, can a court, once the privilege is properly invoked, which is an absolute privilege that the government is able to invoke in this litigation, can a court then proceed to adjudicate the merits nevertheless or disregard the government's application of the privilege, invocation of the privilege in that circumstance? [00:41:20] Speaker 06: The answer is no. [00:41:22] Speaker 06: Now, as a result, as this court explained in Hulkin, [00:41:25] Speaker 06: The result may be that meritorious constitutional claims don't get litigated. [00:41:31] Speaker 05: This is killing US citizens. [00:41:32] Speaker 05: That's quite a power to say that the executive branch has, and it's absolutely unchecked. [00:41:39] Speaker 05: There's no capacity whatsoever. [00:41:44] Speaker 05: for judicial review through a habeas action or this type of civil action, which is a functional equivalent of a habeas action, there's nothing whatsoever. [00:41:54] Speaker 05: There's no precedent for that. [00:41:56] Speaker 05: And you've got precedent generally on state secrets, but you've got nothing that says executing US citizens. [00:42:03] Speaker 05: My hypothetical is on US soil. [00:42:06] Speaker 05: This case involves not on US soil. [00:42:08] Speaker 06: Certainly, there's no specific case that has addressed this specific type of claim. [00:42:14] Speaker 06: But the point is that the privilege itself, the very premise of the rationale of the privilege. [00:42:21] Speaker 05: I do appreciate how extraordinary that proposition is that the U.S. [00:42:24] Speaker 05: government can be executive branch. [00:42:28] Speaker 05: can unilaterally decide to kill U.S. [00:42:32] Speaker 05: citizens? [00:42:34] Speaker 05: And you've given me no basis for distinguishing that power existing even here on U.S. [00:42:39] Speaker 05: soil without any process whatsoever. [00:42:43] Speaker 05: That would make a lot of things a lot easier. [00:42:46] Speaker 06: Your Honor, I don't mean to suggest that the analysis, if you [00:42:51] Speaker 06: were adjudicating such a case would be different as to a person on US soil. [00:42:56] Speaker 06: We obviously haven't addressed that question here. [00:42:59] Speaker 05: My point is simply that- Is there anything in your arguments that would change based on whether it's US soil? [00:43:04] Speaker 05: I didn't see anything at all that turned on that. [00:43:07] Speaker 05: Is it less of a political question if it's on US soil? [00:43:11] Speaker 05: In your thoughts. [00:43:15] Speaker 06: Whether or not there would be some differences, I simply don't have the [00:43:19] Speaker 06: You know, we haven't had to address any of that at this point, but I take your questions to get to a significant concern that obviously the [00:43:30] Speaker 06: the engaging in a strike of this nature is a serious undertaking. [00:43:33] Speaker 06: And there's no question that that's true. [00:43:35] Speaker 06: And the government absolutely agrees that in this circumstance, the district court has an important role to play in taking a careful look at the government's assertion of the privilege to ensure that it is appropriate in the circumstances. [00:43:48] Speaker 01: Can I ask this question? [00:43:49] Speaker 01: Can I ask this question? [00:43:50] Speaker 01: So in Hyundai, if the government, there was no state secrets assertion in Hyundai. [00:43:56] Speaker 01: But if the government had asserted the state secrets privilege [00:44:01] Speaker 01: Would the result have been that the habeas case goes away and that the detention authority continues to exist? [00:44:10] Speaker 06: how that would have sort of played out in those circumstances, because remember, it's dependent on the specific facts that are an information that is removed from the case on the basis of the privilege. [00:44:21] Speaker 06: So here, Mr. Kareem cannot demonstrate even his standing without information covered by the privilege, nor for that matter can it can be demonstrated [00:44:31] Speaker 06: whether or not he has standing at all. [00:44:33] Speaker 06: So whether or not he's on the target of the progress. [00:44:37] Speaker 01: I guess I'm just hypothesizing a situation in which the government would say that we can't get into [00:44:44] Speaker 01: whether we can't get into the bona fides of the determination that Mr. Hamdi is an enemy combatant, because if we did that, then it would reveal too much and there's military secrets in play. [00:44:56] Speaker 01: And the proceeding just can't go forward in any way that would allow us to shed light on the decision making there. [00:45:01] Speaker 01: And therefore, it's a military secret under Reynolds. [00:45:05] Speaker 01: And therefore, the proceeding just stops. [00:45:07] Speaker 01: It's not criminal. [00:45:08] Speaker 01: It's civil, because habeas is a petition that's filed by the detainee, not an inquiry that's launched by the government. [00:45:16] Speaker 01: And therefore, there's nothing further. [00:45:19] Speaker 01: We just continue to detain. [00:45:23] Speaker 06: Again, if the sort of [00:45:25] Speaker 06: If the occasion for invocation of the privilege is appropriate, then the consequences that flow from that are the consequences that flow from that. [00:45:31] Speaker 06: But of course, as we know, in the habeas context, the government has proposed to the district court and then ultimately has proceeded to litigate [00:45:41] Speaker 06: under certain protections, those habeas petitions, you know, over the last decade. [00:45:48] Speaker 01: Without ever asserting the state secrets privilege, as far as I know, is that, I'm not aware, I could be wrong about that. [00:45:53] Speaker 06: Right, it's not asserting the state secrets privilege in that context. [00:45:56] Speaker 06: Now, all that goes to show is that those cases don't have much to say about what happens when the government does properly invoke the privilege. [00:46:05] Speaker 06: And we know what the answer to that question is because of the Supreme Court's decision in Reynolds and all of this court's cases, which have repeatedly echoed the basic premise that the particular strength of the interest goes to the scope of the inquiry and not to the availability of the privilege in the first instance. [00:46:23] Speaker 01: Okay. [00:46:23] Speaker 01: Thank you. [00:46:24] Speaker 01: Let me make sure my colleagues don't have further questions for you, Mr. Hanchul. [00:46:28] Speaker 05: Do you think there's any reason, since he seems to be in custody of a terrorist organization, should that affect us going forward with this case, since it's a case just for injunctive relief? [00:46:39] Speaker 06: Your Honor, I don't know the details of Mr. Kareem's present situation, and so I'd be pressed to provide any guidance on that. [00:46:49] Speaker 06: Obviously, his counsel would be better positioned to give you whatever his current status is. [00:46:57] Speaker 01: Thank you, Mr. Henshawood. [00:46:59] Speaker 01: Ms. [00:46:59] Speaker 01: Plahatsky, we'll give you your two minutes of rebuttal. [00:47:02] Speaker 03: Thank you, Your Honor. [00:47:04] Speaker 03: I think the government's argument has just made pretty clear that there are no circumstances under which it would permit a US citizen to challenge his designation on the kill list. [00:47:13] Speaker 03: In order to have standing, the government seems to think that Mr. Kareem needs to provide the make and model of the missiles fired at him. [00:47:21] Speaker 03: Of course, that's not a reasonable expectation. [00:47:23] Speaker 03: In the circumstances that he is in, [00:47:25] Speaker 03: He has provided all the circumstantial evidence that's available to him to make his claim. [00:47:30] Speaker 03: And the case law says that when a plaintiff alleges, as Mr. Kareem has done here, that discovery will reveal additional evidence and all of the other relevant evidence is in the possession of defendants, that he has pleaded facts sufficient to support standing. [00:47:48] Speaker 03: Moreover, the government's argument that this is a political question is deeply disturbing, as this court has recognized. [00:47:57] Speaker 03: In al-Shifa and al-Jubeir, the court was asked to review the merits and the wisdom of military judgments. [00:48:04] Speaker 03: This is an ordinary due process claim, and the court has a role to play here, as it would in any other due process scenario. [00:48:12] Speaker 03: It's a purely legal issue, and the government has offered [00:48:16] Speaker 03: No limiting principle, as this court has observed, on whether and when it can kill U.S. [00:48:22] Speaker 03: citizens. [00:48:23] Speaker 03: So whether that's in a parking lot in the United States or abroad in Syria, the government has claimed for the first time ever in this case that it has unfettered and unreviewable discretion to kill U.S. [00:48:38] Speaker 03: citizens at will. [00:48:40] Speaker 03: If the court adopts the government's argument, that would ultimately extinguish the Fifth Amendment [00:48:44] Speaker 03: due process right that any US citizen has. [00:48:47] Speaker 03: So we request that this court remand to the district court with instructions to proceed to discovery. [00:48:54] Speaker 01: Thank you, counsel. [00:48:55] Speaker 01: Thank you to both counsels. [00:48:56] Speaker 01: We'll take the case under submission.