Court: U.S. District Court for the District of Columbia

Type of decision: Memorandum Opinion

Date judgment: 22 February 2016

Case no.: 15-0840 (ESH)

Area of jurisdiction: Civil law

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Claim: Extrajudicial killings executed by the U.S. are unlawful.

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Principle legal argument(s): The United States and various government officials (1) violated the U.S. Torture Victim Protection Act (TVPA) by carrying out extra-judicial killings, and (2) wrongfully caused the deaths of Salem and Waleed bin Ali Jaber in violation of customary international law. Determine whether defendants have violated the TVPA and   customary international law present ‘purely legal issues’ over which this court has jurisdiction.

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Type of reparation sought: Plaintiffs seek a declaration that the United States and   various government officials (1) violated the Torture Victim Protection Act (“TVPA”) by carrying out extra-judicial killings, and (2) wrongfully caused the deaths of Salem and Waleed in violation of customary international law.

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Mr Faisal bin Ali Jaber and others -the plaintiffs- are Yemenite nationals who lost relatives (Salem and Waleed bin Ali Jaber) during a drone attack on August 29, 2012 in the village of Khashamir, Yemen. Plaintiffs advance that the drone bombing that killed their relatives was a “signature strike”, in which an unidentified person is targeted based upon a pattern of suspicious behaviour, but that Salem and Waleed were no terrorists. After the attack, a purported representative of Yemen’s security services apologized to Faisal and stated that Salem and Waleed were “not the targets.” Faisal then unsuccessfully sought the exoneration of Salem and Waleed and compensation from the Yemeni government [p. 3].

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This lawsuit was brought by Mr Jaber and other relatives that Mr Jaber is representing in this case. The relatives, who are living in Yemen, advance that the political situation in Yemen and other (family, financial and employment) circumstances impede their appearance to the court in person and that other forms of distant communication (internet, teleconference) are malfunctioning in the region where they live.

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Plaintiffs seek a declaration from the court that the United States, President Obama, former Secretary of Defense Leon Panetta, former CIA Director David Petraeus and three unknown defendants, by carrying out the drone strikes 1) violated the Torture Victim Protection Act (“TVPA”) and (2) wrongfully caused the deaths of Salem and Waleed in violation of customary international law.

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Defendants filed a motion asking the court to dismiss the case entirely. They argued that plaintiffs have no standing – i.e. that he has no legal right to bring his case in the US – and that whether a US drone killed his relatives is a ‘political question’ that no court should review [p. 4-8].

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The first procedural issue the court had to decide was whether plaintiffs have legal standing. Plaintiffs base their right to bring the claim on “next friend” standing. Although defendants acknowledge that Mr Faisal meets the prerequisites for “next friend” standing, they claim that the absent relatives cannot. A putative “‘next friend”, they set forth, must provide an adequate explanation – such as inaccessibility, mental incompetence, or other disability – why he cannot appear on his own behalf to prosecute the action” and defendants advance that the absent relatives have not sufficiently demonstrated their inability to access the courts [p. 7]. But the court established that the absent plaintiffs are sufficiently inaccessible to invoke next friend standing [p. 8].

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Subsequently, the court addressed the defendants’ argument that the court lacks jurisdiction to hear plaintiffs’ claims because they present non-justiciable political questions. The court first observes that the political question doctrine, primarily a function of the separation of powers, prevents courts from passing judgment on policy choices and value determinations that are “by their nature committed to the political branches to the exclusion of the judiciary” [p. 9]. Then, the court indicates that courts are reluctant to legally review issues that concern foreign affairs and national security [p. 9] and seeks guidance in the framework for determining political questions:

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Prominent on the surface of any case held to involve a political question is found:

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1. A textually demonstrable constitutional commitment of the issue to a coordinate political department; or
2. A lack of judicially discoverable and manageable standards for resolving it; or
3. The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or
4. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
5. An unusual need for unquestioning adherence to a political decision already made; or
6. The potentiality of embarrassment from multifarious pronouncements by various departments on one question.”[p. 10].

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According to the court, plaintiffs’ claim that the drone strike violated domestic and international law, would require it to assess the point at which Salem, Waleed and other victims presented an “imminent” threat to the U.S., such that it could confidently second-guess the Executive”, whether or not the victims could have been captured instead of killed or if the drone strike was proportional. The court is not willing to do so arguing that the Executive is far better suited to make such determinations [p. 11]. In this context, the court refers to the third point of the above cited framework that precludes a decision to take military action from judicial review [p. 12]. Responding to plaintiffs’ argument that the claim is not against a political policy but against an action of the Executive, the court point out that “a policy cannot be viewed in isolation from the actions taken in support of it” [p. 14].

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Finally, the court only partly agrees with plaintiffs’ assertion that the court’s holding bars judicial review of the most heinous war crimes. It acknowledges that it is true that the political question doctrine bars the court to review war crimes emanating from a policy decision of the Executive. Conversely, the court points at three situations where the cited doctrine does not bar judicial review: a) challenged conduct of the Executive that falls outside the scope of official duties (although it is unlikely that committing a war crimes would qualify as such) b) constitutional claims [p. 14-15] and c) decisions that have some “vague impact” on foreign affairs potentially do not constitute a political question [p. 9].

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The court dismissed the claim for lack of subject matter jurisdiction.

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Epilogue

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Mr Jaber appealed the decision of the District Court and on 13 December 2016, the first ever US appellate court hearing. In these proceedings, three former drone operators filed an amicus brief (pdf link), in support of Mr Jaber, refuting former President Obama’s claim that “before any strike is taken outside of a warzone, there must be near certainty that no civilians will be killed or injured.”

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Prior to the court hearing, Mr Jaber wrote a letter to President Obama informing him that he will drop the case in exchange for an apology and acknowledgment that his relatives who were killed by the drone bombing were innocents. In addition, he asks Mr Obama to acknowledge the error that killed his relatives, apologizing, and disclosing details of the operation that killed them so that lessons can be learned. Mr Jaber also requests that before leaving office, President Obama release more detailed information on civilian casualties from drone strikes.