Ahmed Salem Bin Ali Jaber v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 13, 2016 Decided June 30, 2017

No. 16-5093

AHMED SALEM BIN ALI JABER, PERSONAL REPRESENTATIVE OF

THE ESTATE OF SALEM BIN ALI JABER, BY HIS NEXT FRIEND

FAISAL BIN ALI JABER AND ESAM ABDULLAH

ABDULMAHMOUD BIN ALI JABER, PERSONAL REPRESENTATIVE

OF THE ESTATE OF WALEED BIN ALI JABER, BY HIS NEXT

FRIEND FAISAL BIN ALI JABER,

APPELLANTS

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-00840)

Jeffrey D. Robinson, pro hac vice, argued the cause for

Appellants. With him on the briefs were Eric L. Lewis, Tara

J. Plochocki, and Brent Nelson Rushforth.

Kathleen McClellan and Jesselyn Radack were on the

brief for amici curiae Brandon Bryant, Lisa Ling, and Cian

Westmoreland in support of Appellants.

2

Katherine Twomey Allen, Attorney, U.S. Department of

Justice, argued the cause for Appellee. With her on the briefs

were Benjamin C. Mizer, Principal Deputy Assistant Attorney

General, and Douglas N. Letter and H. Thomas Byron, III,

Attorneys.

Steven D. Schwinn was on the brief for amicus curiae

The John Marshall Law School International Human Rights

Clinic in support of Appellants.

Mary E. O’Connell was on the brief for amici professors

Mary Ellen O’Connell and Douglas Cassel in support of

Appellants.

Before: BROWN, SRINIVASAN and PILLARD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Following the terrorist attacks of

September 11, 2001, Congress authorized the President “to

use all necessary and appropriate force” against al-Qaeda, the

Taliban, and associated forces. See Authorization for Use of

Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat. 224

(2001). Since then, the Executive has increasingly relied

upon unmanned aerial vehicles, or “drones,” to target and kill

enemies in the War on Terror. This case concerns an alleged

drone misfire—a bombing that resulted in unnecessary loss of

civilian life.

Plaintiffs Ahmed Salem bin Ali Jaber (“Ahmed”) and

Esam Abdullah Abdulmahmoud bin Ali Jaber (“Esam”),

through their next friend Faisal bin Ali Jaber (“Faisal”), seek

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a declaratory judgment stating their family members were

killed in the course of a U.S. drone attack in violation of

international law governing the use of force, the Torture

Victim Protection Act (“TVPA”), and the Alien Tort Statute

(“ATS”). The district court dismissed their claims primarily

on political question grounds, and Plaintiffs appeal. At this

stage of proceedings, we must accept all factual allegations

asserted in the Complaint as true. See, e.g., Tri–State Hosp.

Supply Corp. v. United States, 341 F.3d 571, 572 n.1 (D.C.

Cir. 2003).

I.

In late-August 2012, the bin Ali Jaber family gathered in

Khashamir, Yemen for a week-long wedding celebration. On

August 24th, Ahmed Salem bin Ali Jaber (“Salem”), an imam

in the port town of Mukalla, was asked to give a guest sermon

at a local Khashamir mosque. His sermon, a direct

“challenge[ to] al Qaeda to justify its attacks on civilians,” JA

19, apparently did not go overlooked by local extremists. On

August 29th, three young men arrived at Salem’s father’s

house and asked to speak with Salem.

The men first arrived in the “early afternoon,” but

Salem’s father told them Salem was “visiting neighboring

villages.” JA 20. The three men left and returned around

5:00pm that same day, when Salem’s father informed them

they might find Salem “at the mosque after evening prayers.”

JA 21. The men again departed before reappearing at the

mosque around 8:30pm. Fearful of the men, Salem asked

Waleed bin Ali Jaber (“Waleed”), one of the town’s two

policemen, to accompany him to meet them. According to the

Complaint, “Two of the men sat down with Salem under a

palm tree near their parked car, while the third [man]

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remained a short distance away, watching the meeting.” JA

21.

Shortly thereafter, members of the bin Ali Jaber family

“heard the buzzing of the drone, and then heard and saw the

orange and yellow flash of a tremendous explosion.” Ibid.

According to witnesses, “the first two strikes directly hit

Salem, Waleed[,] and two of the three strangers. The third

missile seemed to have been aimed at where the third visitor

was located . . . . The fourth strike hit the [men’s] car.” JA

21–22. Plaintiffs now contend a U.S.-operated drone

deployed the four Hellfire missiles that killed the five men.

Plaintiffs allege the three visiting men—and not Salem or

Waleed—were the intended targets of the attack, and those

men were not “high-level, high-value targets to the United

States.” JA 10. The Complaint further states the men had

driven “for a significant distance outside populated areas in

order to reach Khashamir,” and “loitered alone for a

significant period before meeting with Salem and Waleed.”

Ibid. Plaintiffs, therefore, conclude,

The three young men seeking Salem could have been

interdicted earlier in the day at manned checkpoints

close to the village along both roads in and out of

Khashamir. If [a] more robust detaining force was

called for, an allied [i.e., Yemeni] military base was

only 2.5–3 kilometers away from where the missiles

hit.

JA 39 (second alteration in original).

That evening, a “Yemeni official” spoke by telephone

with several members of the bin Ali Jaber family, including

Faisal, to “convey[] personal condolences for the wrongful

deaths of Salem and Waleed, but [he] offered no official

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acknowledgement of or redress for the strike.” JA 11. In

response to Faisal’s repeated attempts to lobby officials first

in Yemen and later in the U.S., the “Yemeni government

ordered the families receive the equivalent of around $55,000

US in Yemeni currency,” which it described as a

“condolence” payment. JA 30–31. Later, a member of

Yemen’s National Security Bureau offered a family member

$100,000 in U.S. dollars; he originally stated the money was

from the U.S. government but later recanted once Faisal asked

for the statement in writing. After trying in vain to receive

official recognition for the attack from elected officials,

Plaintiffs now turn to the courts.

Plaintiffs allege Salem and Waleed were collateral

damage in a “signature strike,” an attack where the U.S.

targets an unidentified person (here, the three men) based on a

pattern of suspicious behavior as identified through metadata.

Plaintiffs further claim “the drone operator(s) waited until

Salem and Waleed joined the three [men] to strike,” JA 40, in

violation of international law, since there was ample

opportunity to strike when the men were (1) alone in the

Yemeni countryside where they could be targeted without fear

of civilian casualties or (2) in locations where Yemeni

officials could easily take them into custody.

Shortly after this lawsuit was filed, the government

successfully moved under the Westfall Act, 28 U.S.C. § 2679,

to substitute the United States for the named defendants as to

all counts except those under the TVPA. Thereafter, the

government moved to dismiss this action for lack of subject

matter jurisdiction and failure to state a claim upon which

relief may be granted. The district court granted the motion

on Federal Rule of Civil Procedure 12(b)(1) grounds. It held,

while Faisal had “next friend” standing to bring suit on

Plaintiffs’ behalf, Plaintiffs’ claims were nonetheless barred

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on political question grounds. The district court further

stated, “[P]laintiffs’ claims would [also] face insurmountable

barriers on the merits” since “previous exposure to illegal

conduct does not in itself show a present case or controversy

regarding injunctive relief” and the TVPA “does not authorize

suits against U.S. officials.” JA 62 n.6. Plaintiffs timely

appealed.

II.

The “first and fundamental question” this Court is

“bound to ask and answer” is whether it has jurisdiction to

decide this case. Steel Co. v. Citizens for a Better Env’t., 523

U.S. 83, 94 (1998). The political question doctrine concerns

the jurisdictional “‘case or controversy’ requirement” of

Article III of the Constitution, Schlesinger v. Reservists

Comm. To Stop the War, 418 U.S. 208, 215 (1974); see also

Bancoult v. McNamara, 445 F.3d 427, 432 (D.C. Cir. 2006),

and the Court must address it “before proceeding to the

merits,” Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005) (emphasis

added).

“The nonjusticiability of a political question” as

articulated by the Supreme Court “is primarily a function of

the separation of powers.” Baker v. Carr, 369 U.S. 186, 210

(1962). The doctrine “excludes from judicial review,”

however sympathetic the allegations, “those controversies

which revolve around policy choices and value

determinations constitutionally committed for resolution to

the halls of Congress or the confines of the Executive

Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478

U.S. 221, 230 (1986). The framework laid out by the

Supreme Court in Baker v. Carr articulates the contours of the

doctrine:

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Prominent on the surface of any case held to involve

a political question is found [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 nonjudicial 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.

369 U.S. at 217. Of course, “[t]o find a [nonjusticiable]

political question, we need only conclude that one factor is

present, not all,” Schneider v. Kissinger, 412 F.3d 190, 194

(D.C. Cir. 2005); nonetheless, “[u]nless one of these

formulations is inextricable from the case at bar,” we may not

dismiss the claims as nonjusticiable, Baker, 369 U.S. at 217.

We must conduct “a discriminating analysis of the particular

question posed” in the “specific case” before the Court to

determine whether the political question doctrine prevents a

plaintiff’s claims from proceeding to the merits. Id. at 211.

A.

Plaintiffs seek a declaration stating the drone strike that

killed their relatives violated domestic and international law,

an issue they claim courts are constitutionally required to

decide. The government responds with this Court’s en banc

decision in El-Shifa Pharmaceutical Industries Co. v. United

8

States, 607 F.3d 836 (D.C. Cir. 2010). There, this Court held

“[t]he political question doctrine bars our review of claims

that, regardless of how they are styled, call into question the

prudence of the political branches in matters of foreign policy

or national security constitutionally committed to their

discretion.” Id. at 842. Here, El-Shifa controls; even “a

statute providing for judicial review does not override Article

III’s requirement that federal courts refrain from deciding

political questions.” Id. at 843.

In El-Shifa, the Court addressed a U.S. retaliatory strike

against “a factory in Sudan believed to be associated with the

bin Ladin [terrorist] network and involved in the production

of materials for chemical weapons.” Id. at 838. The owners

of the El-Shifa factory sued, alleging they were producing

medicine for the Sudanese people, not chemical weapons, and

arguing the strike was a mistake. They sought compensation

for the destruction of their plant under the Federal Tort

Claims Act (“FTCA”) and the law of nations; they further

asserted a cause of action in defamation based on U.S.

government statements asserting the El-Shifa plant had ties to

bin Ladin and functioned as part of his terror network. Id. at

839–40.

Following a panel decision affirming the district court on

political question grounds, this Circuit voted to rehear the

case en banc. Id. at 840. The full Court adopted a functional

approach to the political question doctrine, distinguishing

between nonjusticiable “claims requiring [courts] to decide

whether taking military action was wise—a policy choice and

value determination constitutionally committed for resolution

to the halls of Congress or the confines of the Executive

Branch”—and fully justiciable “claims presenting purely legal

issues such as whether the government had legal authority to

act.” Id. at 842. Since the allegations in El-Shifa, set forth as

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purely statutory claims, ultimately required the Court “to

decide whether the United States’ attack on the plant was

mistaken and not justified” and “to determine the factual

validity of the government’s stated reasons for the strike,” the

Court held the case presented a nonjusticiable political

question. Id. at 844. “If the political question doctrine means

anything in the arena of national security and foreign

relations, it means the courts cannot assess the merits of the

President’s decision to launch an attack on a foreign target,

and the plaintiffs ask us to do just that.” Id.; see also

Bancoult, 445 F.3d at 437 (“The courts may not bind the

executive’s hands on [political questions], whether directly—

by restricting what may be done—or indirectly—by

restricting how the executive may do it.”).

It would be difficult to imagine precedent more directly

adverse to Plaintiffs’ position. While Plaintiffs clearly assert

claims under the TVPA and ATS, the precise grounds they

raise in their Complaint call for a court to pass judgment on

the wisdom of Executive’s decision to commence military

action—mistaken or not—against a foreign target. For

example, the Complaint alleges:

• “[n]o urgent military purpose or other emergency

justified” the drone strike, JA 10;

• killing the alleged targets was not “strictly

unavoidable” to defend against an “imminent threat

of death” to the “United States or its allies,” JA 36–

37; and

• the risk to nearby civilians was excessive in

comparison to the military objective since “there

[was] no evidence” the three men were “legitimate

military targets,” and “there were no U.S. or Yemeni

forces or military objectives in the vicinity that were

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in need of protection against three young Yemeni

men,” JA 38.

To resolve Plaintiffs’ claims, a reviewing court must

determine whether the U.S. drone strike in Khashamir was

“mistaken and not justified.” El-Shifa, 607 F.3d at 844. As

El-Shifa warns, these questions are the province of the

political branches, regardless of the statutes under which

Plaintiffs may seek to sue. See, e.g., id. (addressing an FTCA

claim); Gonzales-Vera v. Kissinger, 449 F.3d 1260, 1264

(D.C. Cir. 2006) (noting a TVPA claim, “like any other, may

not be heard if it presents a political question” and holding the

same for claims under the ATS); Schneider, 412 F.3d at 197

(applying the political question doctrine to claims under the

TVPA and FTCA because “recasting foreign policy and

national security questions in tort terms does not provide

standards for making or reviewing foreign policy

judgments”).

Plaintiffs will no doubt find this result unjust, but it stems

from constitutional and pragmatic constraints on the

Judiciary. In matters of political and military strategy, courts

lack the competence necessary to determine whether the use

of force was justified.

The complex[,] subtle, and professional decisions as

to the . . . control of a military force are essentially

professional military judgments, subject always to

civilian control of the Legislative and Executive

Branches. The ultimate responsibility for these

decisions is appropriately vested in branches of the

government which are periodically subject to

electoral accountability.

Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Put simply, it is

not the role of the Judiciary to second-guess the determination

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of the Executive, in coordination with the Legislature, that the

interests of the U.S. call for a particular military action in the

ongoing War on Terror. To be sure, courts have reviewed

claims brought by individuals incarcerated at Guantanamo

Bay on charges of terrorism and other war crimes. See Pls.

Br. 25; see also, e.g., Al Bahlul v. United States, 840 F.3d 757

(D.C. Cir. 2016) (en banc). But while “the political question

doctrine does not preclude judicial review of prolonged

Executive detention predicated on an enemy combatant

determination,” that is “because the Constitution specifically

contemplates a judicial role in this area.” El-Shifa, 607 F.3d

at 848. There is, in contrast, “no comparable constitutional

commitment to the courts for review of a military decision to

launch a missile at a foreign target.” Id. at 849. 1

1

While briefing in this case was pending, the Fourth Circuit decided Al-

Shimari v. CACI Premier Tech., Inc., 840 F.3d 147 (4th Cir. 2016). There,

our sister circuit examined the conduct of private contractors conducting

interrogations at Abu Ghraib prison as alleged by Iraqi individuals who

claimed they had been incarcerated and tortured at that facility. The

Fourth Circuit held “conduct by [private contractor defendants] that was

unlawful when committed is justiciable, irrespective whether that conduct

occurred under the actual control of the military,” while “acts committed

by [private contractor defendants] are shielded from judicial review under

the political question doctrine if they were not unlawful when committed

and occurred under the actual control of the military or involved sensitive

military judgments.” Id. at 151. The court’s analysis—hinging upon

whether the conduct of defendants was “lawful” or “unlawful”—puts the

cart before the horse, requiring the district court to first decide the merits

of a claim and, only thereafter, determine whether that claim was

justiciable. See Schneider, 412 F.3d at 193 (confronting allegations the

U.S. government had kidnapped, tortured, and killed an individual—

obviously “unlawful” conduct—but stating at the outset “courts lack

jurisdiction over political decisions that are by their nature committed to

the political branches to the exclusion of the judiciary”) (emphasis added);

see also Haig v. Agee, 453 U.S. 280, 292 (1981) (“Matters intimately

related to foreign policy and national security are rarely proper subjects

12

B.

Plaintiffs argue their reading of El-Shifa gains support

from the Supreme Court’s opinion in Zivotofsky ex rel.

Zivotofsky v. Clinton, 566 U.S. 189 (2012), which held the

political question did not bar judicial review of a claim

attacking the constitutionality of a statute allegedly regulating

the Executive. Again, Plaintiffs’ claim fails.

In Zivotofsky, the Court considered a statute directing the

Secretary of State, upon request, to issue a registration of birth

or passport to a U.S. citizen born in Jerusalem that identified

the individual’s place of birth as “Jerusalem, Israel.” Id. at

193. The President’s signing statement asserted the statute, if

it were construed as mandatory, would impermissibly

interfere with the Executive’s foreign relations powers. Id. at

192. Consequently, the U.S. Embassy later refused

Zivotofsky’s request to list his place of birth as Jerusalem,

Israel and issued a passport and registration of birth listing

only “Jerusalem.” Id. at 193. The Supreme Court noted “the

parties [did] not dispute the interpretation” of the statute, and

the question before the Court concerned whether the statute

was constitutional. Id. at 196. Accordingly, the Court held

the question justiciable, reasoning Zivotofsky did not “ask the

courts to determine whether Jerusalem is the capital of Israel”

but sought only to vindicate his statutory right to have Israel

designated as his place of birth on his passport. Id. at 195.

Zivotofsky confirms no per se rule renders a claim

nonjusticiable solely because it implicates foreign relations.

Rather, it recognizes that, in foreign policy cases, courts must

first ascertain if “[t]he federal courts are . . . being asked to

for judicial intervention.”). Regardless, in this Circuit, El-Shifa and not

Al-Shimari controls.

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supplant a foreign policy decision of the political branches

with the courts’ own unmoored determination” or, instead,

merely tasked with, for instance, the “familiar judicial

exercise” of determining how a statute should be interpreted

or whether it is constitutional. Id. at 196. In the latter case,

the claim is justiciable. Id.; see also Japan Whaling Ass’n v.

Am. Cetacean Soc’y, 478 U.S. at 229–30 (stating not “every

case or controversy which touches foreign relations lies

beyond judicial cognizance[,]” and emphasizing “courts have

the authority to construe treaties[,] . . . executive agreements,

and . . . congressional legislation” and to address other

“purely legal question[s] of statutory interpretation” in the

foreign policy realm). Therefore, if the court is called upon to

serve as “a forum for reconsidering the wisdom of

discretionary decisions made by the political branches in the

realm of foreign policy or national security[,]” then the

political question doctrine is implicated, and the court cannot

proceed. El–Shifa, 607 F.3d at 842.

Zivotofsky sought only to enforce a statute alleged to

directly regulate the Executive, and the reviewing court

needed to determine only “if Zivotofsky’s interpretation of the

statute [was] correct, and whether the statute [was]

constitutional.” Zivotofsky, 566 U.S. at 196. 2 The Court was

not called upon to impose its own foreign policy judgment on

the political branches, only to say whether the congressional

statute encroached on the Executive’s constitutional authority.

This is the wheelhouse of the Judiciary, and accordingly, it

does not constitute a nonjusticiable political question. Here,

however, Plaintiffs assert claims under the TVPA and ATS

that would require the Court to second-guess the wisdom of

the Executive’s decision to employ lethal force against a

2

On the merits, the Supreme Court later found Congress’s directive

unconstitutional. See Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct.

2076 (2015).

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national security target—to determine, among other things,

whether an “urgent military purpose or other emergency

justified” a particular drone strike. JA 10. Indeed, Plaintiffs’

request is more analogous to an action challenging the

Secretary of State’s independent refusal to recognize Israel as

the rightful sovereign of the city of Jerusalem, a decision

clearly committed to executive discretion.

C.

Plaintiffs note the Executive has made a number of public

statements and issued several memoranda setting forth its

legal analysis justifying drone strikes and, presumably,

defining the outer limits of when those strikes are appropriate.

See PROCEDURES FOR APPROVING DIRECT ACTION AGAINST

TERRORIST TARGETS LOCATED OUTSIDE THE UNITED STATES

& AREAS OF ACTIVE HOSTILITIES 1 (May 22, 2013), available

at https://www.aclu.org/sites/default/files/field_document/

presidential_policy_guidance.pdf (unattributed internal policy

memo detailing the Executive’s internal rules regulating

drone strikes outside of active war zones); see also U.S.

DEP’T OF JUSTICE, LAWFULNESS OF A LETHAL OPERATION

DIRECTED AGAINST A U.S. CITIZEN WHO IS A SENIOR

OPERATIONAL LEADER OF AL-QA’IDA OR AN ASSOCIATED

FORCE (Draft Nov. 8, 2011), available at

https://www.documentcloud.org/documents/602342-draft-

white-paper.html (articulating a “legal framework” for drone

strike attacks); U.S. DEP’T OF JUSTICE, LEGALITY OF A

LETHAL OPERATION BY THE CENTRAL INTELLIGENCE AGENCY

AGAINST A U.S. CITIZEN (May 25, 2011), available at

https://www.scribd.com/document/239101821/Redacted-

White-Paper#fullscreen&from_embed (offering a legal basis

for drone strikes conducted by the CIA). These Executive

statements, however, do not constitute an invitation to the

Judiciary to intrude upon the traditional executive role. See

15

Schneider, 412 F.3d at 193 (“[C]ourts lack jurisdiction over

political decisions that are by their nature committed to the

political branches to the exclusion of the judiciary.”).

The George W. Bush and Barack Obama Administrations

may have laid out the legal rules they understood to govern

their conduct, but they did not concede authority to the

Judiciary to enforce those rules. Nor could they. While an

Executive may self-regulate during his term in office, it is the

courts, and not executive branch attorneys, that possess the

power to “say what the law is.” Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803). And it is the Executive, and not

a panel of the D.C. Circuit, who commands our armed forces

and determines our nation’s foreign policy. As explained at

length above, courts are not constitutionally permitted to

encroach upon Executive powers, even when doing so may be

logistically, if not constitutionally, manageable.

For example, when reviewing the Secretary of State’s

designation of a group as a “foreign terrorist organization”

under the Antiterrorism and Effective Death Penalty Act, the

D.C. Circuit held it may constitutionally decide whether the

government has followed the proper procedures, whether the

organization is foreign, and whether it has engaged in terrorist

activity, but not whether “the terrorist activity of the

organization threatens the security of United States nationals

or the national security of the United States.” People’s

Mojahedin Org. of Iran v. U.S. Dep’t of State (PMOI), 182

F.3d 17, 21–24 (D.C. Cir. 1999) (quoting 8 U.S.C.

§ 1189(a)(1)(C)). The Court held the last criterion—however

straightforwardly articulated—presented a nonjusticiable

political question because the Secretary’s determination of

whether the terrorist activities at issue constituted threats to

the U.S. “are political judgments, ‘decisions of a kind for

which the Judiciary has neither aptitude, facilities nor

16

responsibility and have long been held to belong in the

domain of political power not subject to judicial intrusion or

inquiry.’” Id. at 23 (quoting Chi. & S. Air Lines, Inc. v.

Waterman S.S. Corp., 333 U.S. 103, 111 (1948)).

III.

In short, El-Shifa controls the Court’s analysis here and

compels dismissal of Plaintiffs’ claims. To borrow a closing

line, “Under the political question doctrine, the foreign target

of a military strike cannot challenge in court the wisdom of

[that] military action taken by the United States. Despite their

efforts to characterize the case differently, that is just what the

[P]laintiffs have asked us to do. The district court’s dismissal

of their claims is [a]ffirmed.” El-Shifa, 607 F.3d at 851.

So ordered.

BROWN, Circuit Judge, concurring: Theory holds that

courts must apply the political question doctrine to

circumstances where decision-making, and the constitutional

interpretation necessary to that process, properly resides in the

political branches of government. But theory often does not

correspond with reality. The world today looks a lot different

than it did when the Supreme Court decided Baker v. Carr,

369 U.S. 186 (1962). Our latest phase in the evolution of

asymmetric warfare continues to present conundrums that

seem to defy solution. Today, the Global War on Terror has

entered a new chapter—in part because of the availability of

“sophisticated precision-strike technologies” like drones.

Philip Alston, The CIA & Targeted Killings Beyond Borders,

2 HARV. NAT’L SEC. J. 283, 441 (2011). Yet the political

question doctrine insures that effective supervision of this

wondrous new warfare will not be provided by U.S. courts.

In other liberal democracies, courts play (or seem to play)

a significant supervisory role in policing exercises of

executive power. See Kristen E. Eichensehr, Comment, On

Target? The Israeli Supreme Court & the Expansion of

Targeted Killings, 116 YALE L.J. 1873, 1873 (2007) (noting

the Israeli Supreme Court had authored the “world’s first

judicial decision on targeted killings,” holding “terrorists are

civilians under the law of armed conflict and thus are lawfully

subject to attack only when they directly participate in

hostilities”). In this country, however, strict standing

requirements, the political question doctrine, and the state

secrets privilege confer such deference to the Executive in the

foreign relations arena that the Judiciary has no part to play.

These doctrines may be deeply flawed. In fact, I suspect that

technology has rendered them largely obsolete, but the

Judiciary is simply not equipped to respond nimbly to a

reality that is changing daily if not hourly.

2

I.

In November 2001, the United States launched its first

armed drone strike in Afghanistan, targeting Mullah Akhund,

the Taliban’s number three in command; the attack missed

him but killed several others. Michael C. Horowitz et al.,

Separating Fact from Fiction in the Debate Over Drone

Proliferation, 41 INT’L SECURITY 7, 7 (2016). The following

year, the United States conducted a drone strike in Yemen

targeting Qa’id Salim Sinan al Harithi, an al-Qaeda operative

suspected of plotting the attack against the U.S.S. Cole in

2000. Id. Thereafter, the strikes grew both in number and

geographic scope, “extending to Pakistan in 2004 and

Somalia in 2007,” for a total of approximately 50

counterterrorism strikes during the Bush Administration. Id.

In July 2016, the Obama Administration reported 473

counterterrorism strikes against terrorist targets outside areas

of active hostilities—largely consisting of missiles launched

from drones—had killed between 2,372 and 2,581 members

of terrorist groups as well as 64 to 116 non-combatants.

OFFICE OF THE DIR. OF NAT’L INTELLIGENCE, SUMMARY OF

INFORMATION REGARDING U.S. COUNTERTERRORISM STRIKES

OUTSIDE AREAS OF ACTIVE HOSTILITIES 1 (July 1, 2016),

available at https://www.dni.gov/files/documents/Newsroom/

Press%20Releases/DNI+Release+on+CT+Strikes+Outside+A

reas+of+Active+Hostilities.PDF (reporting figures for the

period beginning January 20, 2009 and ending December 31,

2015). Even the government acknowledges the “inherent

limitations” in its ability to calculate the precise effect of

these strikes, and it admits the number of non-combatant

deaths could be closer to 900. Id. at 2. Non-governmental

sources offer substantially higher estimates. See Br. for

Brandon Bryant, et al. as Amici Curiae Supporting Appellants

7 (“Serving in the Air Force, amici witnessed widespread and

deliberate misclassification of deaths as ‘enemy kills.’ In

3

situations where targets were unknown, they were often

classified as ‘enemy kills.’”); Daniel Byman, Why Drones

Work: The Case for Washington’s Weapon of Choice, 92

FOREIGN AFFAIRS 32, 35–36 (2013) (citing studies).

More recently, the drone program—run jointly by the

Central Intelligence Agency (“CIA”) and the Joint Special

Operations Command (“JSOC”) at the Department of

Defense—has expanded to include “signature strikes,” such as

the one that allegedly killed Salem and Waleed, where the

government targets anonymous suspected militants solely

based on their observed pattern of behavior. Id. at 36. This

practice does not confine targets to high-level al-Qaeda

operatives, and the targets of the strikes are often unknown to

U.S. intelligence. Rather, signature strikes target unidentified

individuals based on where they live, who they associate with,

and whether they engage in behavior commonly associated

with militants. Indeed, even after a signature strike is

complete, the government still does not know “the precise

identities of who [was] killed.” Dan de Luce & Paul

McLeary, Obama’s Most Dangerous Drone Tactic Is Here To

Stay, FOREIGN POL’Y (Apr. 5, 2016),

http://foreignpolicy.com/2016/04/05/obamas-most-dangerous-

drone-tactic-is-here-to-stay/.

Drones are an unquestionably effective way to wage war

against geographically-isolated targets. In addition to

providing unparalleled levels of surveillance, they have killed

many al-Qaeda leaders, denied sanctuary to terrorist groups,

and encumbered communication among those seeking to plot

attacks. All this at low financial cost, zero risk of harm to

U.S. forces, and “fewer civilian casualties than many

alternative methods.” Byman, supra, at 32. 1 On a more

1

Perhaps unsurprisingly, the drone program’s push-button war is

politically popular. In 2015, the most recent survey results available, 58%

4

sinister note, lethal drone strikes avoid the complexities of

dealing with live terrorist prisoners—judicial review alone

requires a costly trial, complete with due process protections,

followed by prospects for protracted appeal and habeas

attempts. See id. at 34 (“It has become more politically

palatable for the United States to kill rather than detain

suspected terrorists.”). One commentator went so far as to

say the Executive has “adopted a de facto ‘kill not capture’

policy” when confronting the terrorist threat. David Rohde,

The Obama Doctrine, 192 FOREIGN POL’Y 64, 68 (2012). One

thing is clear: the current generation of drone technology

presents political and operational advantages that, all else

equal, encourages the use of military force. Horowitz, supra,

at 22.

II.

El-Shifa Pharmaceutical Industries Co. v. United States,

607 F.3d 836 (D.C. Cir. 2010) (en banc), sensibly holds that a

court should not second-guess an Executive’s decision about

the appropriate military response—avoiding the need for

boots on the ground, for example—to address a singular threat

that might occur once or twice at widely separated intervals.

Its doctrine, however, seems a wholly inadequate response to

an executive decision—deployed through the CIA/JSOC

targeted killing program—implementing a standard operating

procedure that will be replicated hundreds if not thousands of

times.

of Americans approved of U.S. drone strikes, and only 35% disapproved.

Public Continues To Back U.S. Drone Attacks, PEW RESEARCH CTR. (May

28, 2015), http://www.people-press.org/2015/05/28/public-continues-to-

back-u-s-drone-attacks/. The study further found 48% of Americans were

very concerned drone strikes could endanger lives of innocent civilians

and only 29% were very concerned about whether the strikes were being

conducted legally. Id.

5

Addressing these two markedly different scenarios

through a shared legal framework is simply impossible, and

yet it is precisely what our precedent demands. To the extent

the military sees itself as merely continuing the war declared

on the U.S. by other means, the drone program may take the

war to the enemy. Thus, anyone who credibly represents a

threat can be targeted, and, as when armies actually clash, a

certain amount of collateral damage is inevitable. See id. On

the other hand, CIA/JSOC signature strike activities are

covert (at least until the missile finds its target) and intended

to develop intelligence that allows the U.S. to anticipate

threats to interests at home and abroad. The rules of that

game are tacitly assumed to be unknown. Courts are ill-

equipped “to assess the nature of battlefield decisions” or “to

define the standard for the government’s use of covert

operations in conjunction with political turmoil in another

country.” Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 45 (D.D.C.

2010).

Of course, this begs the question: if judges will not

check this outsized power, then who will? No high-minded

appeal to departmentalism, arguing “each [branch] must in the

exercise of its functions be guided by the text of the

Constitution according to [that branch’s] own interpretation of

it,” E. BURNS, JAMES MADISON: PHILOSOPHER OF THE

CONSTITUTION 187 (reprinted 1968), changes the fact that

every other branch of government seems to be passing the

buck. The President is the most equipped to police his own

house. See generally AKHIL REED AMAR, AMERICAN’S

CONSTITUTION: A BIOGRAPHY 60–63 (2005) (discussing the

President’s independent obligation to ensure his actions

comply with the Constitution). But, despite an impressive

number of executive oversight bodies, there is pitifully little

oversight within the Executive. Presidents are slow to appoint

members to these boards; their operations are shrouded in

6

secrecy; and it often seems the boards are more interested in

protecting and excusing the actions of agencies than holding

them accountable. Congress, perhaps? See generally Frank

H. Easterbrook, Presidential Review, 40 CASE W. RES. L.

REV. 905, 912 (1990) (“If Congress enacts a War Powers Act

and the President goes his merry way in reliance on a more

expansive view of executive power (and a stingy view of

legislative power), Congress need not give up.”). But

congressional oversight is a joke—and a bad one at that.

Anyone who has watched the zeal with which politicians of

one party go after the lawyers and advisors of the opposite

party following a change of administration can understand

why neither the military nor the intelligence agencies puts any

trust in congressional oversight committees. They are too big.

They complain bitterly that briefings are not sufficiently in-

depth to aid them in making good decisions, but when they

receive detailed information, they all too often leak like a

sieve.

Our democracy is broken. We must, however, hope that

it is not incurably so. This nation’s reputation for open and

measured action is our national birthright; it is a history that

ensures our credibility in the international community. 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.

The Executive and Congress must establish a clear policy for

drone strikes and precise avenues for accountability.

Civilizational peril comes in many forms—sometimes

malevolent philosophies, sometimes hostis humanis generis

(pirates, slavers, and now terrorists), and in each epoch we

must decide, like Thomas More in Robert Bolt’s A Man for

All Seasons, what must be preserved:

7

ROPER: So now you’d give the Devil benefit of

law!

MORE: Yes! What would you do? Cut a great road

through the law to get after the Devil?

ROPER: I’d cut down every law in England to do

that!

MORE: Oh? And when the last law was down, and

the Devil turned round on you—where would you

hide, Roper, the laws all being flat? This country’s

planted thick with laws from coast to coast—man’s

laws, not God’s—and if you cut them down—and

you’re just the man to do it—d’you really think you

could stand upright in the winds that would blow

then? Yes, I’d give the Devil benefit of law, for my

own safety’s sake.

ROBERT BOLT, A MAN FOR ALL SEASONS 37–38 (1960). The

Court’s opinion has not hacked down any laws, though we

concede the spindly forest encompassing the political

question doctrine provides poor shelter in this gale. But it is

all a Judiciary bound by precedent and constitutional

constraints may permissibly claim. It is up to others to take it

from here.