Court: United States Court of Appeals for the District of Columbia Circuit

Type of decision: Judgment

Date judgment: 30 June 2017

Case no.: No. 16-5093

Area of jurisdiction: Civil Law

Claim: U.S. drone strikes that killed plaintiffs’ family members   violated international law governing the use of force and U.S. domestic Law, namely the Torture Victim Protection Act (“TVPA”) and the Alien Tort Statute (“ATS”).

Principle legal argument(s):

– Drone strike was not justified by urgent military purpose or other emergency;

– Killing the alleged targets was not “strictly unavoidable” to defend against an “imminent threat of death” to the United States or its allies;

– The risk to nearby civilians was excessive in comparison to the military objective since there was no evidence that the victims were legitimate military targets, and there were no U.S. or Yemeni forces or military objectives in the vicinity that were in need of protection against the victims.

Type of reparation sought: Plaintiffs seek a declaratory judgment stating their family members were killed in the course of a U.S. drone attack in violation of international law and domestic law.

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Court of Appeals rules that plaintiff’s claim presents a nonjusticiable political question:“Courts are not constitutionally permitted to encroach upon Executive powers”

Mr. Faisal bin Ali Jaber and others -the plaintiffs- are Yemenite nationals who lost their relatives, Salem and Waleed bin Ali Jaber, during an U.S. drone attack on August 29, 2012 in the village of Khashamir, Yemen. Plaintiffs brought the case to the U.S. District Court of Colombia, claiming that Salem and Waleed were collateral damage in a “signature strike” that was conducted in violation of domestic and international law. Following the District Court’s decision that the political question doctrine prevented it from passing judgment on policy choices and value determinations, plaintiffs filed an appeal.

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The Court of Appeal notes that it first must decide whether it has jurisdiction to decide this case before proceeding to the merits (p. 6), a question it answers in the negative with reference to Article III of the U.S. Constitution determining that a Court only has jurisdiction when the “‘case or controversy’ requirement” is met. Controversies revolving around policy choices and value determinations of the Executive Branch, the so called “political questions”, are barred from judicial review. Having outlined the six elements constituting political questions (p. 7) and with ample reference to the 2010 El- Shifa[1] case, the Court notes that in essence it is asked to decide whether taking military action was wise which is equivalent to reviewing a political question, and thus cannot decide the case for lack of subject matter jurisdiction. Likely, this unsatisfactory lack of judicial oversight brings the Court to point at the fact that the Executive Branch is held to account for its targeted killing decisions during the U.S. presidential elections (p. 10).

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Although this is a disappointing outcome for plaintiffs, the concurring opinion[2] issued by Judge Brown may present a sparkle of hope for she brings to the table the discussion about the tenability of the political question doctrine (as well as the state secrets privilege doctrine). She advances that, whereas in the context of counter terrorism the president of the United States is vested with the power to kill using modern technologies such as remotely controlled armed drones equipped with software that enables targeting individuals based on a pattern of behaviour, oversight is a must yet sorely lacking: the Judiciary is constitutionally confined to adjudicating non-political questions and congressional oversight is inadequate. In view of such “civilizational peril” she calls on the Executive and Congress “to establish a clear policy for drone strikes and precise avenues for accountability.”

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Following this Court’s decision to dismiss the case, plaintiffs decided to take the case to the Supreme Court that, on November 27th 2017 released a list of cases that it declined to hear, under the header ‘Certiorari denied’. Certiorari is denied when the appelate court decides that the case does not present an appropriate matter for its consideration. The case of Faisal bin Ali Jaber was on it (p. 3).

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[1] El-Shifa Pharmaceutical Industries Company et al vs. U.S.A. 607 F.3d 836 (D.C. Cir. 2010) (en banc).

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[2] A concurring opinion may agree with the outcome decided in the court’s opinion, but would have reached the same result for a different reason.