CONSTITUTIONAL LAW--AMERICA'S DRONE WAR ABROAD--JABER V. UNITED STATES, 861 F.3D 241 (D.C. CIR. 2017).

• Author: Harris, Stephen R.

Drone technology has expanded the United States ability to conduct operations in support of the War on Terror to a global level. (1) Since 2001, presidential administrations have employed drone strikes as a lethal option in covert international operations. (2) In Ahmed Salem Bin Ali Jaber v. United States, (3) the District of Columbia Circuit Court of Appeals addressed whether the family of an innocent victim killed in a drone strike could be awarded a declaratory judgment based on a violation of international law. (4) The court looked to the Torture Victim Protection Act 5 ("TVPA") and the Alien Tort Statutes (6) ("ATS") to analyze the use of force. (7) The court appropriately affirmed the district court's ruling that these claims are barred under the political question doctrine. (8)

In August 2012, the bin Ali Jaber family gathered in Khashamir, Yemen to attend a week-long wedding celebration. (9) On August 24, 2012, Ahmed Salem bin Ali Jaber ("Salem") provided a guest sermon at a local Khashamir mosque, directly challenging al Qaeda to "justify its attacks on civilians." (10) Shortly after the sermon, on August 29, 2012, three young men arrived at Salem's father's house and asked to speak with Salem, but he was unavailable. (11) Later that same evening, the men approached Salem at the mosque to discuss statements from his sermon. (12)

When Salem met the group, two of the three men followed him to sit under a palm tree. (13) Shortly after Salem went with the group of men, "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." (14) According to witnesses, four missiles impacted and resulted in the death of all five people. (15) Salem's family contends that a United States-operated drone deployed four Hellfire missiles that killed the five men. (16) Salem's family lobbied the Yemeni and United States governments for redress. (17)

The plaintiff's sought official recognition from the United States government and filed a lawsuit against it for damages. (18) The United States moved to dismiss the action for "lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted." (19) The district court granted the government's motion based on political question grounds, barring any claim. (20) The D.C. Circuit Court of Appeals affirmed the district court's holding on appeal. (21)

The political question doctrine determines questions that are beyond the scope of Article III of the United States Constitution. (22) In application, a court must determine whether it has the appropriate jurisdiction to hear the claim. (23) In determining whether a claim falls within the political question doctrine, the Court uses a six factor analysis established in Baker v. Carr. (24) If a court determines at least one factor from Baker is present, then the political question doctrine bars the procedure to only an analysis of the claim on the merits. (25)

Courts have been limited to reviewing battlefield decisions when applying the political question doctrine. (26) Historically, if a court determines the nature of a claim to be limited to a power specifically vested to a branch of government, the court will not review the merits of the claim. (27) The United States Supreme Court has identified a functional approach to distinguish between nonjusticiable claims and fully justiciable claims in order to analyze the political question doctrine. (28) However, a court will not bar a claim if the Constitution specifically contemplates a judicial role in the arena or if they are not asked to determine a political question in deciding the merits of a claim. (29)

In Ahmed Salem Bin Ali Jaber v. United States, the court upheld the ruling of the district court and barred the Plaintiffs' claim under the political question doctrine. (30) The court first determined whether it had the jurisdiction to hear the claim. (31) Following this analysis, the court held that a declaration that stated responsibility for the strike would constitute a political question. (32) Finally, the court examined a number of public statements issued by President Bush and President Obama and determined that the Executive Branch did not concede authority to the judiciary to enforce the rules. (33)

Judge Brown wrote a concurring opinion highlighting the issues that surround the political question doctrine. (34) The concurring opinion argued that the majority appropriately outlines the applicable authority, but failed to adapt the law surrounding the current conflict with changes in technology. (35) Judge Brown summarized the extent to which drone technology has been used in non-combat zones and its evolution over time. (36) Finally, she argued that the holding of El-Shifa is appropriate for the executive branch, but is not an adequate response for the CIA/JSOC targeted killing programs. (37) However, the majority opinion appropriately analyzed the plaintiffs' claim to determine the court is barred under the political question doctrine. (38)

The court first analyzed whether the plaintiffs satisfied the standing requirement to bring the claim. (39) The court then appropriately moved to determine the question regarding jurisdiction. (40) The court correctly applied the six political question doctrine factors from Baker to determine whether the plaintiff's claims were barred. (41) The court then stated that it must conduct a "discriminating analysis" of the case before determining whether the political question doctrine bars the plaintiff's claim. (42)

After correctly determining the applicable political question doctrine law, the court examined the plaintiffs' claims. (43) The government relied on the opinion in El-Shifa to demonstrate that the political question doctrine barred the plaintiff's claim because it "call[ed] into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion." (44) The plaintiff asserted that when El-Shifa is read together with Zivotofsky, it allowed for the claim not to be barred by the political question doctrine. (45) To solidify the court's conclusion that the plaintiff's claim is barred, the court looked to executive statements to consider if the executive branch intended to concede power to the judiciary, and determined they did not because those statements set forth a legal analysis for drone strikes, but they did not concede authority to the judiciary. (46) The court appropriately held the plaintiffs' claims were barred by the political question doctrine and affirmed the district court's finding. (47)

Judge Brown, in her concurring opinion, agreed with the outcome but expressed dismay in the system. (48) Throughout the concurring opinion, Judge Brown identified the proliferation of drone technology and drone strikes conducted by the United States around the world. (49) Judge Brown stated that El-Shifa applied to an Executive's decision about the appropriate military response, but incorrectly believed the doctrine should not apply to an executive decision deployed through the CIA/JSOC targeted killing programs. [50]

The District of Columbia Court of Appeals determined whether the district court properly granted the government's motion to dismiss based on the political question doctrine. The court properly analyzed the jurisdictional requirements essential to the political question doctrine by applying the Baker factors. Furthermore, the court concluded that El-Shifa, the controlling precedent, required the court to affirm the decision of the district court. Although the concurring opinion outlined some drawbacks to the court's application of the doctrine, the correct application of the political question doctrine allows for powers to remain in their respective branches.

(1) See Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities, ACLU (May 22, 2013), available at https://www .aclu.org/sites/default/files/field_document/presidential_policy_guidance.pdf [https://perma.cc/ ENB9-AB69] (establishing standard procedures for when United States takes direction action against targets).

(2) See id. (authorizing use of lethal drone strikes).

(3) 861 F.3d 241 (D.C. Cir. 2017).

(4) See id. at 243 (addressing issue in case).

(5) See Torture Victim Protection Act Of 1991, Pub. L. No. 102-256, 106 Stat. 73 ("[t]o carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.").

(6) 28 U.S.C. [section] 1350 (1948) ("[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.").

(7) See Jaber, 861 F.3d at 243 (referencing plaintiffs' claims).

(8) See id. at 250 (affirming district court's dismissal of plaintiffs' claims).

(9) See id. at 243 (explaining why plaintiff was in area).

(10) See id. (restating facts of case). Ahmed Salem bin Ali Jaber, an imam in the port town of Mukalla, was asked to speak as a guest in the Khashamir mosque. Id. According to the plaintiffs' complaint, this sermon was not overlooked by local extremists. Id. at 243.

(11) See Jaber, 861 F.3d at 243-44 (identifying time when unknown individuals approached). The group of unidentified men first arrived at Salem's father's home in the early afternoon. Id. At 243. Salem's father told the group that Salem was visiting neighboring villages and the men left. Id. Later that evening, the group returned to the home and Salem's father informed them that they might find Salem "at the mosque after evening prayers." Id. at 244.

(12) See id. at 244 (discussing how meeting took...