Thursday, June 14, 2018
Judge Rosemary Collyer (D.D.C.) ruled yesterday that a journalist's due process claim against the government for including him on a drone-strike kill list can move forward. Judge Collyer ruled that the journalist had standing, and that his due process challenge did not present a non-justiciable political question.
The case originally involved two journalists who challenged their inclusion on the government's drone-strike kill list. They lodged a series of challenges, including violation of the Administrative Procedure Act (because inclusion violated the government's criteria for inclusion, adopted under President Obama); violations of the EO banning assassinations, the Geneva Conventions, the International Covenant on Civil and Political Rights, and federal law; and violations of due process.
The government moved to dismiss the case for lack of standing and because it raised a non-justiciable political question. The court granted the motion in part and denied it in part.
The court ruled that one of the plaintiffs lacked standing, because he failed sufficiently to allege a harm. The court said that the other plaintiff demonstrated harm (and causation and redressability), but that claims based on the APA, the EO, the Geneva Conventions, the ICCPR, and related federal law all raised a political question. As to the APA claim, the court said that it had no judicially manageable standards for resolving it. The court said that the presidential guidance for inclusion on the kill list didn't provide sufficiently determinate standards for judicial review. (The more vague a government policy, the less likely a plaintiff can challenge it under the APA.) As to the other claims, the court merely said that "the process of determining whether Defendants exceeded their authority or violated any of the statutes referenced in the Complaint would require the Court to make a finding on the propriety of the alleged action, which is prohibited by the political question doctrine."
But as to the due process claim, the court concluded that there was no political-question-doctrine bar to moving forward. The court emphasized that the plaintiff's claim was against his inclusion on the kill list, and not that a drone strike was invalid (which might have raised a political question):
[The plaintiff] does not seek a ruling that a strike by the U.S. military was mistaken or improper. He seeks his birthright instead: 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 due to his profession.
The ruling does not touch on the merits; it merely allows the due process portion of one plaintiff's case to move forward. Still, getting over the political question doctrine in a case like this is a significant victory for the plaintiff.