B ilal Abdul Kareem is an expert in staying alive.
Born Darrell Lamont Phelps, he grew up just north of the Bronx in Mount Vernon, New York. He did what lots of kids in his neighborhood were doing in the late Seventies and Eighties: He spent his time rolling on the floor laughing to comics like Flip Wilson and Richard Pryor.
Later, after college at SUNY Purchase in Westchester, he decided to try stand-up himself. Hecklers were a problem.
In upscale white clubs where he sometimes performed, audiences would clap politely if his jokes missed. Not so much in the Brooklyn clubs he worked. The mostly black audiences there let him have it when he was off.
“Black folks always want to get involved in the act, you know what I’m saying?” he recalls, laughing. “Then you gotta respond with some ‘Yo mama’s so fat’ jokes just to get them to sit down and shut up.”
Over a decade later, after some major life changes – he’d converted to Islam and found himself working as a TV reporter in the Middle East under his new name, Bilal Abdul Kareem – he again drew upon his stand-up experience to stay alive. Only he wasn’t worried about dying on stage this time. This time it was more serious.
In the waning days of the Battle of Aleppo, as Syrian dictator Bashar al-Assad’s forces closed in on the city, Kareem found himself in a room full of desperate Free Syrian Army rebels.
“I was understandably nervous,” he remembers. “I was the only American inside of this very small area that was besieged.”
The talk in the room turned ominous.
“One of the guys said, ‘You know what? I heard you get $20,000 for kidnapping an American.’”
Kareem pauses as he recalls the scene. He would have stood out in that crowd, as he does everywhere in the Middle East: a black New Yorker with a loud belly laugh.
“You’ve got these nanoseconds to come up with some kind of response,” he explains. “You don’t want them to see you sweat.”
All the eyes in the room turned toward Kareem. Would this American fetch $20,000?
“Nah, man,” he said to his audience. “That’s just for the white ones.”
The room roared with laughter.
“I was like, ‘Phew,’” Kareem says. Then, slipping out: “‘All right, guys, I gotta go.’”
Soon, he was forced to cheat death again.
According to Kareem, in the summer of 2016, things began to explode around him with suspicious frequency. In the space of a few months, he survived five different attacks.
In the first, the Syrian office of the controversial Islamist TV network he founded, On the Ground News, was hit by a missile.
In the second, a stretch of road where he was setting up a film location became a sizzling crater moments after he walked up the street to look for a better view.
It was in the third incident, he says, when he first saw an American drone overhead. He and his crew were shooting a story in a remote town in the Aleppo countryside.
“They were picking off Al Qaeda and Al Nusra members,” he says. “I didn’t pay it much attention. I thought, ‘It’s not the first time I’ve heard a drone.’”
But after he’d completed the segment and begun heading back to the car with his crew, he still heard the drone.
“That’s when we first felt a little bit alarmed,” he remembers, speaking by Skype. “For 20 minutes to be hovering over us, that wasn’t normal. Usually they come and then they go.”
His crew got into the car and drove a mile or two, then parked to wait for an interview subject. Suddenly, a nearby SUV exploded.
“I thought the Earth had split,” Kareem says. “Our car was flipping into the air. I thought the car had fallen off something into the Earth.”
The SUV, he alleges, had been hit with a Hellfire missile. Kareem broke a toe, but says he and his crew were otherwise miraculously unscathed.
Soon after, Kareem was tipped off by a source in Turkey that he had been put on a list of targets at Incirlik Air Base, a launching pad for American drones.
“They decided to warn me rather than read about it in the newspaper,” he says.
In the fourth attack that summer, an explosion again rocked his office, which was in the basement of a building that doubled as a charity center, he says.
A woman, an elderly man and a 10-year-old girl happened to be there that day. They were all killed.
A few weeks later, he survived another explosion, he says, outside a Syrian artillery college that had recently fallen into rebel hands.
Kareem now had no doubt he was on America’s infamous “Kill List.” Most Americans don’t even know we have such a thing. We do. Officially, it goes by the ghoulish bureaucratic euphemism “Disposition Matrix.”
Seemingly conceived in the Obama years, the lethal list – about which little is known outside a few leaks and court pleadings – appears to sort people into targeting for capture, interrogation, or assassination by drone. It was run by a star-chamber of two-dozen security officials and the president. According to a 2012 New York Times report, they met once a week to decide which targets around the world lived or died.
These meetings became known as “Terror Tuesdays.”
As Obama was preparing to leave office, candidate Donald Trump was promising to jack up the number of bombings in the Middle East. “You have to take out their families,” he said.
It’s one of the few promises he’s fulfilled. Reports vary, but some estimate that Trump has upped the pace of drone attacks by about four or five times the Obama rate, which itself was 10 times the rate of Bush.
We kill suspects whose names we know, and whose names we don’t; we kill the guilty and the not guilty; we kill men, but also women and children; we kill by day and by night; we fire missiles at confirmed visual targets, but also at cellphone numbers we hope belong to targets.
When he first heard he was on this list, Kareem was aghast. This was no situation like the siege of Aleppo, where a quick joke might turn the crowd. How could anyone reverse the decision of a deadly bureaucracy so secret and inaccessible that even if it had an off switch, few in the civilian world would know where to find it? How could he talk his way out of this one?
Kareem appealed for help to Clive Stafford Smith, an Anglo-American attorney he’d met in his travels, who’d founded a London-based human rights organization called Reprieve.
With Reprieve’s help, Kareem did what the system asks a law-abiding American citizen with a grievance to do. He sued, filing a complaint in district court in Washington, D.C., on March 30th, 2017, asking the U.S. government to take him off the Kill List, at least until he had a chance to challenge the evidence against him.
The case, still unresolved more than a year later, has awesome implications not just for Kareem but for all Americans – all people everywhere, for that matter.
It’s not a stretch to say that it’s one of the most important lawsuits to ever cross the desk of a federal judge. The core of the Bill of Rights is in play, and a wrong result could formalize a slide into authoritarianism that began long ago, but accelerated after 9/11.
Since that day, we have given presidents enormous power – to make war, to torture, to detain indefinitely – and our entire legal system has been transformed on a variety of fronts, placing huge questions about illegal searches, warrantless arrest, indefinite detention, torture and other matters behind an impenetrable wall of secrecy, outside the reach of courts.
And yet, nobody is paying attention. While America obsesses over Russia, Stormy Daniels and Kim Jong-Un, almost no one is covering Kareem’s trial. His race-against-time effort to escape the American killing machine is too surreal, even in the Trump era. But it’s also a potentially devastating last-straw moment in the history of America’s recent dystopian slide, with the executive branch asking for the ultimate in dictatorial powers: the right to kill even its own citizens without having to explain itself.
The law governing assassination in America has long been a paradox. It is explicitly both legal and illegal.
The legal wormhole first opened in 1975, when a committee headed by Idaho Sen. Frank Church exposed a generation of alleged repugnant practices by the CIA and other secret agencies, including the U.S’s possible involvement in assassinations of foreign leaders like Rafael “El Jefe” Trujillo of the Dominican Republic and South Vietnamese President Ngo Dinh Diem.
In the wake of these disclosures, then-President Gerald Ford signed an Executive Order that said, “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.” Subsequent orders by Jimmy Carter in 1978 and Ronald Reagan in 1981 doubled down on the ban. Though Reagan went on to attempt to assassinate Muammar Qaddafi.
Finally, in 1998, under Bill Clinton, and then again in the George W. Bush years, classified Justice Department memoranda were written explaining, according to The Washington Post, that “executive orders banning assassination do not prevent the president from lawfully singling out a terrorist for death by covert action.”
Even before planes struck the Twin Towers, in other words, presidents had already given themselves permission to ignore their own executive orders.
In the week after 9/11, the House and Senate passed a joint resolution called the AUMF (Authorization to Use Military Force) that gave the president license to use “all necessary and appropriate force against those nations, organizations, or persons” who “planned, authorized, committed, or aided” the 9/11 attacks.
Robotized killings began almost immediately. The first known drone assassination took place in Afghanistan in 2001. By 2012, we were flying at least 16 drone missions per day, mostly for reconnaissance but some for more deadly reasons, and we had committed lethal drone attacks in six countries: Afghanistan, Pakistan, Libya, Somalia, Iraq and Yemen. These were supported by a pan-Arabian archipelago of airstrips, with bases in Djibouti, Ethiopia, Saudi Arabia, Turkey, even the Seychelles.
A crucial Rubicon was crossed in 2011, when the Obama administration decided to drone-bomb New Mexico-born Anwar al-Awlaki, a U.S. citizen and suspected Al Qaeda terrorist.
There was some outcry about the president now having authority to kill even Americans without due process – “I think it’s sad,” said U.S. Congressman Ron Paul – but the uproar soon faded, and America’s assassination program accelerated still more. By late 2011, we’d killed more than 2,000 “militants.”
Our secret bureaucracy, it seemed, had acquired a taste for taking human life.
“We are killing these sons of bitches faster than they can grow them,” The Washington Post quoted a CIA official as saying.
Tuesday, May 1st, 2018, a muggy day in Washington, D.C. In a mostly empty federal courtroom just off the Mall, a gaunt-but-cheerful judge named Rosemary Collyer, dressed in a traditional black robe and a cancer survivor’s bandanna, sits down to hear Ahmad Muaffaq Zaidan and Bilal Abdul Kareem v. Donald J. Trump et al.
Kareem’s co-plaintiff, Ahmad Zaidan, is a Pakistani-Syrian journalist who, like Kareem, came to believe he was on the Kill List. His hunch came when his name turned up in materials leaked by whistleblower Ed Snowden. Zaidan found what appeared to be an NSA PowerPoint slide, identifying him as a member of both Al Qaeda and the Muslim Brotherhood, and showing him with a terror-watch-list ID number.
A onetime Pakistan bureau chief for Al-Jazeera, Zaidan twice interviewed Osama bin Laden. In an interview with the Intercept three years ago, Zaidan “absolutely” denied being a member of any terrorist group. (Zaidan was not reached for this story).
Kareem says he and Zaidan have neither met nor spoken, though they share Reprieve’s representation. Independently of each other, they both first tried writing a letter to Trump begging for mercy. Neither man got an answer. What will the courts say now?
“OK, everybody,” Judge Collyer says. “We’re here for this really, really interesting case. Who’s going to argue for the plaintiff?”
The question before Collyer would challenge the most gifted legal mind. At issue is the fact that America, in the wake of 9/11, has become two countries.
One is a democracy, visible to the population and governed by the lofty laws and rules and constitutional principles we learned about in Schoolhouse Rock.
The second nation is an authoritarian state-within-a-state, governed exclusively by the executive branch. In this parallel world, all rights redound to a bureaucracy that may kill anyone it pleases at any time, restrained only by the inclinations of the executive.
Essentially, Kareem’s lawyers are appealing to the first America – Collyer’s courtroom – to force the second, secret America to hear him out.
Nobody seems to know what would happen if Kareem or Zaidan tried to come to court, another thing that makes this case uniquely bizarre. Would Kareem be allowed to walk in and take a seat at the plaintiff’s table? Would he be placed under arrest outside the courthouse? Stuffed in the trunk of a Crown Victoria at the airport?
Kareem didn’t have a guess, and the Department of Justice will not comment. So Kareem and Zaidan are represented in person here by a young, quick-witted lawyer named Tara Plochocki, of the Beltway firm Lewis Baach Kaufmann Middlemiss, partners to Reprieve.
Representing the government is a shortish, dark-haired attorney named Stephen McCoy Elliott. The privilege of seeing this box-shouldered, cadaverous functionary in court is as close as Plochocki (and, by extension, Kareem and Zaidan) will get to actually confronting their accusers.
Elliott technically works for the Justice Department, but it’s not clear what other agency or agencies he represents here. The DOJ wouldn’t specify, relaying in a statement: “Federal Programs Branch attorneys litigate on behalf of approximately 100 federal agencies, the President, Cabinet officers, and other government officials.”
The purpose of this hearing is to consider a motion Elliott has made to dismiss the Zaidan/Kareem suit. The government’s main argument is that neither plaintiff has “plausibly” made a case that he is on the Kill List.
Why, Elliott asks, does Kareem only mention a drone in one of the five attacks listed in the complaint? And besides, just because Kareem “experienced explosions” – this preposterous euphemism will be used repeatedly throughout the hearing – does not necessarily mean they are American explosions.
“The much more plausible explanation is that plaintiff Kareem experienced explosions in Syria because he was covering the Syrian civil war as a journalist,” offers Elliott in a monotone voice.
This deadpan absurdity seems to irritate Judge Collyer.
“Tell me,” she asks Elliott. “How many of the combatants, in Syria, used drones?”
Collyer is asking if Elliott is really going to force her to waste time arguing who the hell else, in Syria, shoots Hellfire missiles at people out of drones.
Apparently, Elliott will, in fact, waste the judge’s time in this fashion. He affects ignorance.
“I would not know, your honor,” he says.
Elliott’s argument doesn’t advance much beyond this point. Collyer, sometime later, summarizes the government’s position:
“So [your] argument is that if, A, we didn’t have anything to do with it… but if we did, we did so only because of a determination that – and I’ll talk about Mr. Kareem, because he’s the one with constitutional rights – that Mr. Kareem was a grave threat to national security and the executive gets to make that determination, not a court.”
The next words out of Collyer’s mouth will reveal the plot twist to what until now has seemed like a parody of legal colloquy. She looks down to Elliott:
“Every case agrees with you on that,” she concedes.
For Kareem, a.k.a. “the one with constitutional rights,” this is the unfortunate punchline to this proceeding. This very federal court has heard drone cases before. And in each previous case, courts have punted on the “two Americas” dilemma.
Worse, by refusing to hear those cases, judges in the prior decisions inadvertently created a legal framework for future drone strikes.
The most glaring example involved a hushed-up catastrophe six years before.
August 29th, 2012, a small town in eastern Yemen called Khashamir.
A local cleric named Salem bin Ali Jaber waits beneath a palm tree. The bold imam is known around the country for his oratory denouncing terrorism. After evening prayer, he had been told that three frightening men had come to town looking for him, just days after he’d preached against Al Qaeda.
Jaber is concerned enough about meeting with them that he brings his nephew, a local policeman named Waleed bin Ali Jaber, for protection.
After the three imposing youths arrive, the group stands beneath the palm tree, poised for confrontation. But at exactly the moment the “meeting” was to have begun, an American drone ostensibly targeting the three young men drops Hellfire missiles on the whole group. Everyone is incinerated, including both Jabers.
Jaber’s brother-in-law, Faisal bin Ali Jaber, was on a rooftop that evening. Until he saw the flash in the distance, it had been a happy night, a party for his son’s wedding.
“I saw the lightning in the sky,” he recalls through a translator. “Then I heard the missile, and we all saw the explosion.”
When Faisal raced to the site, he discovered what was left of his brother-in-law – the bodies were in bits – and knew immediately he’d been killed by the Americans.
“Only American drones operate at night,” he says.
But he couldn’t understand why his brother had died. Salem bin Ali Jaber was not just an opponent of terrorism, but traveled around the country with other imams, speaking particularly to young men he felt might otherwise be targeted for recruitment. He was one of the few prominent Yemenis willing to publicly oppose Al Qaeda.
“They were fighting the same battle,” Faisal says, of his brother-in-law and the U.S. “They were fighting the same enemy.”
In July 2014, two years after the Jabers were killed, an official from the Yemeni National Security Bureau met with a member of Faisal’s family and handed over a plastic bag with $100,000 in cash, saying it came from the U.S. (though the security official later denied U.S. involvement).
“Condolence or other ex gratia payments … may be available for those injured and the families of those killed,” a White House National Security Official told Reuters in 2014. This is our Beavis and Butt-head version of an apology for killing innocents: Here’s, like, some money and stuff.
The Jaber family wasn’t mollified by their “condolence payment.” In fact, when Faisal learned more about the drone program and how it worked, he was horrified.
One thing that particularly troubled him was that Americans had begun to remove the human element from the assassination process. One of the few things known about the Kill List is that it’s compiled in part by algorithm.
In 2014, former CIA and NSA director Michael Hayden said in a public debate, “We kill people based on metadata.”
According to multiple reports and leaks, death-by-metadata could be triggered, without even knowing the target’s name, if too many derogatory checks appear on their profile. “Armed military aged males” exhibiting suspicious behavior in the wrong place can become targets, as can someone “seen to be giving out orders.” Such mathematics-based assassinations have come to be known as “signature strikes.”
“When I learned about signature strikes, that was incredible,” Faisal says. “If the criteria is being armed or having a beard – that is everyone in Yemen.”
Desperate to bring attention not only to the injustice but also to the ineffectiveness of the program, Faisal brought a wrongful death suit to the same D.C. district court that would later hear Kareem’s case.
At one point, the family even offered to drop the suit, if President Obama would apologize. In public, that is, not with a private sack of cash.
There seemed some chance of this. Barack Obama, the engaging, sensitive, constitutional-lawyer face of America during the years when the drone program vastly expanded, had apologized in similar circumstances before.
He’d expressed “profound regret” after a drone killed Warren Weinstein and Giovanni Lo Porto, American and Italian hostages, respectively, held by Al Qaeda on the Afghani-Pakistan border.
Faisal bin Ali Jaber wanted the same respect Obama had shown the two white Western victims.
“Your country is founded on the idea that all men are created equal,” he says. “If we are all equal, then he should have apologized to us, too.”
But no apology came. Instead, Obama’s Justice Department lawyers dug in and argued that the Jaber family lacked both standing and a legal avenue to question his decisions.
The court, in the person of District Judge Ellen Huvelle, agreed.
Huvelle flipped the Jabers’ wrongful death complaint on its back in a chilling February 22nd, 2016 decision.
Citing the precedent of the al-Awlaki case, Huvelle agreed with the government: “The court lacks jurisdiction to hear plaintiffs’ claims because they present nonjusticiable political questions, which would require the Court to second-guess the executive’s policy determinations in matters that fall outside of judicial capabilities.”
As a result, the Jaber family flunked what is known as the “political question” test.
This rationale, translated into English, goes something like this: The decision to shoot a Hellfire missile in the direction of not just the wrong guy but exactly the wrong guy in Yemen was made by the executive, for reasons outside any court’s ability to assess. No civilian, in other words, could possibly have enough knowledge to judge the competence or efficacy of this act.
The essence of Faisal bin Ali Jaber v. Barack Hussein Obama et al. is that when we kill abroad, even by mistake, even in an undeclared war, this is foreign policy and therefore outside of judicial authority. This left the Jabers’ claim “nonjusticiable,” i.e., literally outside the reach of the law.
Nonjusticiable. This hideous mouthful of a word, like so many exemplars of the War on Terror lexicon, sounds like it was clipped from the unreadable legalese of an iPhone warranty.
This is how America’s post-9/11 move toward authoritarianism has been executed: without massacres or palace coups, but noiselessly, on paper, through years of metronome insertions of bloodless terms in place of once-vibrant Democratic concepts.
We wiped out the Geneva Convention by creating the unlawful enemy combatant, a term that simply means a person not protected by the Geneva Convention.
The war crime of knowingly killing civilians was long ago renamed collateral damage. Torture was repackaged as enhanced interrogation, while kidnapping and warrantless detention was baptized anew as extraordinary rendition. And so on.
In the Jaber case, the courts upheld the ultimate authoritarian practice – summary execution – by shutting it away behind yet another semantic disguise, this one called political question.
Not all of the judges went along with the ploy. On appeal in circuit court, a long-serving jurist named Janice Rogers Brown made a highly unusual move. She wrote the majority opinion striking down the Jabers’ appeal, but then separately also wrote a blistering criticism. Writing, “Our democracy is broken,” she continued:
The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community, including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland.
Brown pleaded with the government to “establish a clear policy for drone strikes and precise avenues for accountability.”
We did no such thing. After Jaber, the drone program only expanded, allegedly fanning out to an American citizen in Bilal Abdul Kareem.
Brooklyn, New York, the early Nineties. Darrell Lamont Phelps is standing on a street corner, holding a basketball in one hand and a bottle of Old Gold in the other. He hears the call to prayer from a nearby mosque – the Masjid at-Taqwa on Fulton Street. He watches men going in and out.
“I said, ‘Wow, every time I hear that call to pray, I see these guys coming and going,’” he says. “‘They must really get something good out of going.’”
Kareem doesn’t go in that day. He’s suspicious. He’d previously had a girlfriend who pushed him to get religion.
“She said, ‘Look, why don’t we go down to the mosque, and we can become Muslims?’” He laughs. “And I was like, ‘Wait a minute. Sounds like there’s an ulterior motive here. She wants me to marry her!’”
Some time later, he and the girlfriend break up, and Kareem finds himself reading The Autobiography of Malcolm X. Impressed by the tale of Malcolm’s personal turnaround, he finally goes into that mosque and takes the faith.
A former indifferent college student who had spent more time chasing girls than building a career, he feels he finally has direction. But he quickly realizes that much of the religion is “wrapped up in the Arabic language,” and decides to go abroad to learn it.
He goes to the Sudan first, landing at Khartoum. He remembers stepping off the tarmac in the desert heat. “It was like a dragon was breathing on me,” he says. “And at two in the morning! I said, ‘That must be the exhaust from the plane.’ And I kept on walking, and it didn’t stop.”
Kareem moved to Egypt from Sudan and mostly remained overseas from then on. Soon, with fluent Arabic and an aptitude for moving freely in the more metaphorically hot zones in the Middle East, he found a career as a freelance fixer, producer and reporter for TV news companies from all over, from CNN to BBC to Al-Jazeera to Sky News to numerous others.
But over the years, the devout Muslim says, he began to bristle at his assignments. He felt like he was continually being asked to look for sensationalist, caricatured angles about the Muslim world, and seek out “bad guy” terrorist stories to the exclusion of all else.
So he formed his own network, and more and more set his own assignments. The resulting reportage has led some to describe Kareem as a “jihadist propagandist” who creates “sugarcoated” portraits of the Chechen warlords and Al Qaeda heavies who give him remarkable – and, to some, suspicious – access.
To say Kareem is a controversial figure is an understatement. His work on CNN’s Peabody-winning program Undercover in Syria led to criticism of the network. Journalists Max Blumenthal and Ben Norton ripped CNN for working with Kareem, whom they described as a “top Al Qaeda propagandist.”
Pooh-poohing Kareem’s charming “children’s television show host” demeanor, they quoted a pseudonymous Syrian rebel as saying Kareem was not just a sympathizer, but a full-fledged member of Al Nusra, the Al Qaeda-affiliated Syrian Islamicist group.
Kareem, they said, even has a nickname in that part of the world: “American Mujahid.”
Not everyone agrees, however. One journalist tells the tale of a potential interview with an Al Nusra figure that was scuttled because the interviewee rejected Kareem. The terrorist group wanted their own cameraman.
His OGN reports sometimes do feel like straight-up rallying cries for Muslim fighters, and in an interview with the Times, Kareem declined to name who funds his network, but he denies any improper relationship with terrorists. He says he often finds himself pleading the other way on the ground, arguing America’s case to Muslims.
“Too many people over here have a similar stereotype, that all American people want to see Muslim blood flowing in the street,” he says. “And I have to say, ‘Hey man, it’s not like that.’… Some [Muslims] have the idea that because America is a democracy, that means that the majority of the people support these presidents and leaders who launch these attacks that kill innocent people. Therefore, all Americans are ‘accountable.’”
So it was, he says, with a longtime Al Qaeda leader named Abu Firas al-Suri, a native Syrian who was reportedly the leader of the Al Nusra Front in 2013.
Kareem says that when he interviewed al-Suri, he pushed back on that old familiar line about America. “I’m an American, I know how the political system works,” he says. “I went over to his house for reasons that had nothing to do with filming. And he wanted to sit and talk about the American political process. We sat for about two hours and we argued and ate watermelon and drank tea, literally. And then he said, ‘Bilal, when are you coming back again?’”
Kareem believes it was things like this that put him on the Kill List as a “signature strike.”
“It’s easy for somebody back in Washington just to say, ‘I can place his cellphone right there with Abu Firas al-Suri,’” he says.
On April 3rd, 2016, al-Suri was killed in a drone attack, along with his son and at least 20 others.
A few months later, Kareem’s own alleged troubles with drones began.
October 29th, 2013. A Pakistani schoolteacher named Rafiq ur Rehman brings his 9-year-old daughter, Nabila, and his 13-year-old son, Zubair, to Washington. The little boy testifies to the House of Representatives about a drone attack that killed his grandmother.
“My grandmother was nobody’s enemy,” says Zubair. “I no longer love blue skies. In fact, I now prefer gray skies. Drones do not fly when the skies are gray.”
It’s a powerful presentation. There’s only one problem. Only five House members are there to hear it.
The American lawyer who has arranged this testimony, a Saginaw, Michigan, native named Jennifer Gibson, is infuriated. She can’t believe the number of no-shows.
Worse, after the hearing, one of the five members sends his aide to approach the little girl, Nabila. Gibson allows herself to get excited, expecting that he will apologize to the family.
No such luck. Instead, the aide reaches down, hands the girl a dish of ice cream, and walks away.
“I was upset, disappointed, all of that,” Gibson remembers through gritted teeth. “They couldn’t do the apology.”
The ice cream incident stuck with Gibson for years as she fought, often without success, to draw public attention to her country’s assassination regime. Unhappily, the sandy-haired, bright-eyed lawyer probably knows more about drones than any civilian alive.
“I’m a walking, talking database,” she sighs.
Ironically, Gibson has the academic pedigree of a future president. She earned a master’s from Cambridge via a Gates Cambridge Scholarship, one of the world’s most exclusive academic prizes. From there it was on to law at Stanford, where she first began working on the drone issue and worrying about the logistical problem of trying an extralegal program in court.
“I could see even then that the law alone might not be able to help,” she says.
Gibson moved to London after Stanford and has been working at Reprieve ever since. She spent years trying everything she could think of to crack the drone program. She testified before British Parliament, the European Parliament, and even the U.S. Congress, with the ur Rehman family.
Finally, after sifting through media reports and leaks from anonymous Pakistani, Yemeni and American officials, she discovered an odd pattern. For instance, in October 2010, news leaked that Fahd al Quso, a top Al Qaeda leader and suspect in the U.S.S. Cole bombing, had been killed by a drone strike in Waziristan. Two years later, he was reported killed again in a strike in Yemen.
Gibson found that cases like al Quso’s (who actually died in the Yemeni strike) were not the exception but the rule. She looked at 41 different Kill List targets and found that each man “died” an average of three times before actually being killed.
In one extreme case, the CIA reportedly killed 76 children and 29 adults solely in attacks targeting Al Qaeda heavy Ayman al Zawahiri. They never got him. He is the current head of Al Qaeda.
In all, she found that as many as 1,147 people may have died just in attacks targeting the 41 men she studied. The victims were disproportionately children. In attacks targeting 14 men in Pakistan, 142 children died.
She issued a report about this, and won a few headlines, but still, not much changed.
Then she heard about Kareem’s case. As a lawyer, she quickly realized the implications. Only four drone cases had ever reached the U.S. courts; this was only the second, after al-Awlaki, in which the plaintiff was an American. And he wasn’t even dead yet!
Gibson recalls thinking, “This is one of the rare cases where you’ve got an individual who’s saying, ‘Wait a minute. Don’t kill me yet. Please don’t tell me I have to wait for them to kill me for there to be any sort of accountability.’”
The race-against-time aspect put her and the Reprieve team in a legally unique bind. There have been death-penalty cases before, but never one where neither the crime nor the sentence is known to the defense.
“It’s like Minority Report come to life,” she says.
Gibson, who had also prepared the Jaber case, suspected that a simple constitutional claim might fail, even with an American plaintiff. So she and her team decided to try a different tactic. In the human rights litigation equivalent of going after Al Capone for tax evasion, they pushed Kareem’s claim by citing the Administrative Procedure Act, the 1946 law that specifically grants the judiciary the right to review the actions of federal agencies.
Gibson realized that even as judges have been running sideways away from the drone issue for years, they have also routinely forced federal agencies to review decisions about more mundane issues pertaining to people who may pose terrorist threats, like whether they should be allowed a bank account or be put on a no-fly list.
“Courts have been making these types of decisions for 20 years,” she says. The Reprieve-drafted brief wouldn’t force a judge to rule on the overall legality of the drone program. All Gibson’s team wanted was a hearing.
To her enormous surprise, they got one. “It was very unusual for us to get an oral hearing,” she says. “We were excited.”
Back in Washington, May 2018. Tara Plochocki, the local attorney engaged by Reprieve to represent Kareem, is arguing their case.
Judge Collyer seems sympathetic – well, for Kareem, anyway.
“I understand your thing about constitutional rights,” she says, addressing Plochocki. “[But] I don’t understand why you argue that Mr. Zaidan might have constitutional rights. He’s a foreign person.”
She pauses. Everyone in the courtroom understands the judge’s meaning: Well, fuck him then. Zaidan, from that moment, was toast.
As for Kareem, the judge keeps wavering, stuck on what she describes as “political question, political question, political question.”
“Even with constitutional rights, I’m not sure what I can do,” the judge sighs, clearly feeling trapped.
Judge Collyer is in an unenviable spot. She either has to take on an intractable executive branch that has spent years massively investing in a global assassination program, or she has to put her name on a federal ruling that would formally make Swiss cheese of the Bill of Rights. It’s the Sophie’s Choice of legal dilemmas.
Plochocki tries to give Collyer an out.
“We’re not asking for the court to revisit drone policy, we’re not taking a run at the drone program,” she says. “Plaintiffs [just] want an opportunity to be meaningfully heard, just as… if they were designated for economic sanctions or told that they couldn’t board a flight to Cleveland.”
Plochocki suggests the government could just review the record and look to see whether they’d made a rational choice.
The judge parries back: Wouldn’t that mean just asking the government to review data it already has? If they’re using metadata to make these decisions, she argues, the metadata will show he’s been spending time with enemies of the United States, but it won’t show they’re journalists.
“How would they know?” Collyer asks. “I mean, I hate to tell you, they wouldn’t know. Metadata doesn’t say, ‘Oh, and, by the way, this guy was born in Michigan.’”
Collyer turns to the government lawyer, Elliot, to see if he wishes to respond.
He recoils from Plochocki’s argument like she’s asking for the overthrow of the free-enterprise system.
“Asking the court or the government to reassess a determination that they allege has already occurred, that they are authorized for lethal action, that is quintessential political question,” Elliot cries, voice shaking with intensity.
The judge shifts in her seat, pauses, and hypothesizes what a decision ordering a review would be like – some kind of one-way communication that simply asks the “people who make these decisions” (she doesn’t ask who they are) to consider new information.
“You don’t have to go interview [Kareem],” Collyer offers Elliot.
Elliott says he’d have to ask his “client,” and continues to imply, in a stern voice, that any judicial order of any kind would be an assertion of judicial authority over the process.
“I’m not actually asking to change the process,” Collyer says. “And I understand that… [I] don’t have jurisdiction in the first place.”
This is not good news for Kareem. A federal judge has just said, out loud, that she’s not sure she has jurisdiction over the assassination of an American citizen.
The hearing closes shortly after that, with a decision pending.
March 2017. Bilal Abdul Kareem walks through the remains of a mosque in the village of Al-Jinah, not far from Aleppo. On March 16th, two Reaper drones fired at least four Hellfire missiles into this structure, as well as dropped a 500-pound bomb, killing 56.
The U.S. Army Central Command explained that the building had been “assessed to be a meeting place for Al Qaeda” and that they did not hit a mosque, but a building “50 feet from a mosque that is still standing.”
A day later, the Pentagon released a statement saying it had struck “senior Al Qaeda terrorists” and “militants,” with no “credible” evidence of civilian casualties. Ultimately, they admitted they may have killed one child.
Kareem’s report from Al-Jinah is a single, five-minute take in which he walks through what’s left of the building. “I went and I filmed it all in one take and put the lies to the lips of the Pentagon,” he says, wanting to prove that the attack was not only on a single structure, a mosque, but that people fleeing the scene were also targeted.
“You saw the pockmarks on the ground outside the mosque,” he says. On the ground outside the mosque, the video shows a road dotted with tiny craters.
Along with softball interviews of Islamic warrior-heavies like al-Suri and Chechen warlord Muslim Sheeshani, such reports from bomb sites are a theme of Kareem’s work, which he understands doesn’t make him a very sympathetic figure for many Americans.
“Some people would look at me,” he says, “and they would say, ‘Look at this guy, he’s got a beard. He ain’t never said nothing good about democracy. Maybe he really is one of them. So you know what? I think I’ll feed him with the long handle of the spoon and wait and see what happens.’”
Publicly, at least, Kareem has insisted that he personally renounces terrorism, and that killing civilians has “no basis in Islam.” Though he strongly implies that if Americans don’t make some kind of effort to turn off the increasingly indiscriminate campaigns abroad, the tables may someday be turned.
“Let’s just talk mathematics,” he says in response to the Washington Post story about how quickly drones can kill the “sons of bitches” in the Middle East. “Do you really think that you’re killing people faster than they can grow? For every one that you kill, what about all of his family members?”
He goes on:
“Is it unreasonable that at some point, somebody [here] is going to get their hands on something that can do some real damage?… If there’s anything you can put into this article, I would be so keen to ask Americans that: ‘Listen, are you OK with the acts the U.S. government would carry out over on this side of the divide? Are you OK with that happening in Chicago, Miami, Los Angeles, in New York, or in your hometown?”
He pauses. “If you’re OK with that, then don’t worry about what’s happening to Bilal Abdul Kareem.”
Kareem’s chilling speech shows why this case has import for all Americans. For our sake, not just his, we need to know what the case against him is, if there is one.
Does our government believe Kareem has already committed terrorist acts? Does it believe he is planning to commit them in the future? Or do they consider his On the Ground News reports to be a form of aiding terrorism? The implications of the latter alone would be mind-blowing, for the press and for the First Amendment.
Or is the situation even dumber than that? Is Kareem’s would-be death sentence merely a matter of one telephone number grazing another too many times? How does such metadata analysis work? How arbitrary is it exactly?
Earlier this year, news came out that the Pentagon was using Google-developed artificial intelligence technology to analyze drone footage. If the military is using the same kind of pattern-recognition program to look for terrorists that Internet platforms employ to hunt for shoppers, expect plenty of erroneous assassinations in the near future.
Is the case against Kareem based upon a mistake, or is it based on something more substantive? The answer to that question represents the difference between killing a terrorist, and creating one.
We need to know if we’ve become the very thing we ostensibly created the drone program to combat: a secret authoritarian sect that confuses murder and justice.
“Killing individuals from the sky,” says Faisal bin Ali Jaber, “just cannot be the right way.”
Meanwhile, the “one with constitutional rights” waits with his lawyers to see if Judge Collyer can get the “people who make these decisions” to tell him olly olly oxen free, that he’s not on a list and it’s safe to come out. Or not. Anything is preferable to not knowing.
On the evening of Wednesday, June 13th, Judge Collyer hands down a stunning decision. It seems like an unprecedented victory for Plochocki, Gibson, Kareem and the Constitution.
Judge Collyer’s ruling essentially says that the government can’t kill Bilal Abdul Kareem without at least giving him a chance to complain about it in court first.
“Due process is not merely an old and dusty procedural obligation required by Robert’s Rules,” she writes. “Instead, it is a living, breathing concept that protects U.S. persons from overreaching government action even, perhaps, on an occasion of war.”
In one of the great legal understatements ever, Collyer adds, “[Kareem’s] interest in avoiding the erroneous deprivation of his life is uniquely compelling.”
As for Zaidan, she ruled he had no standing because he didn’t sufficiently prove he was on the list. As was clear from the proceeding, he was doomed, and non-Americans will continue to be fair game everywhere.
But she veered into troubling language when she added that Kareem seeks only “his birthright… a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action” (emphasis mine).
This is just the beginning of what will surely be a fight for the ages. Civil cases in America can last years, and few are this complex.
The state has a few options, any of which could still end up with the drone murder of Americans pre-sanctified. It can go ahead and show that it properly followed its own secret guidelines in concluding that Kareem is a terrorist, and still “direct lethal force” at him.
Or the government could appeal Collyer’s ruling with a higher three-judge circuit court panel, and the suit could still be dismissed.
If they do that, and win there, Gibson, Kareem and his team will be right back to where they started: staring at a world where an American citizen cannot walk into a courtroom to contest his or her own extralegal execution.
But for now, even this limited victory is hugely significant. No lawyer has ever even made it past the front stoop in a court challenge to the drone program before. This is uncharted territory, both for America and for the history of the law in the War on Terror years.
“It is a crack of daylight,” says Gibson, “in a program that hasn’t had any.”
A century ago, Franz Kafka wrote a parable about a man who comes to a gatekeeper, begging for entrance to the Law. He is obsessed with questions of guilt or innocence. But the gatekeeper never allows him past, and all he learns in the end is that the heavens are indifferent to his most important questions.
This bleak vision of humanity’s future has come to life in our modern American dystopia.
As American citizens, we’re born promised entry to the Law. But the door is sometimes closed now, and what appears to be behind it – a giant death-sentence factory that seems intractable, ridiculous and error-prone – is trying now to turn on its own. Will it succeed?