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U.S. Government: Courts Do Not Have Power to Review Lawfulness of Drone Strikes

The United States government moved to dismiss a lawsuit brought on behalf of Yemenis killed by a U.S. drone strike, arguing U.S. courts do not have the power to review “national security” or “foreign policy” decisions. The government also contends it could be embarrassing if a court ruled the strike was unlawful, since the Executive Branch came to a different conclusion.

Yemeni civil engineer Faisal bin Ali Jaber filed a lawsuit in a U.S. federal court in June on behalf of his brother-in-law, Salem, and his nephew, Waleed, who were killed by a drone in Khashamir on August 29, 2012.

The complaint filed by the legal charity, Reprieve, described Salem as an imam, who “preached in Khashamir against al Qaida and its methods.” Waleed was a local traffic policeman.

When three young men drove to the village and asked to meet with Salem, Salem agreed to meet with them later in the day. The three young men were apparently targets of the strike, and the complaint maintained Salem and Waleed were killed simply for speaking to the men.

Khashamir was not nearby “any battlefield” and, therefore, there was no “urgent military purpose or other emergency” to justify exterminating Salem and Waleed, the complaint argued.

“The strike plainly violated the Torture Victim Prevention Act’s ban on extrajudicial killings,” the complaint further suggested. “Even if the strikes were taken as part of the United States’ war on al Qaida, the strike violated the principles of distinction and proportionality. These are established norms of the laws of war, which are elements of customary international law that the United States explicitly acknowledges bind this country and apply to its drone warfare operations.”

The government’s motion for dismissal [PDF] invokes the “political question doctrine.” This “doctrine,” as Zachery Morris of the Center for Constitutional Rights has explained, “arises out of the separation of powers, holding that courts are only able to decide legal questions, while purely political questions are the responsibility of other branches of governments.

A military decision to “attack a particular target on the battlefield during wartime” would be beyond review because “military  logistics fall within the president’s domain.” There also are no “judicially manageable standards” for judges to assess the “wisdom or correctness of the military’s decision to strike.”  (As a bit of an aside, the “political question doctrine” is what CACI, a private contractor, has invoked elude accountability for its role in the torture of Iraqis at Abu Ghraib.)

“The crux of plaintiffs’ argument consists of their allegation that the United States conducted an unlawful drone strike in Yemen that resulted in the deaths of their relatives,” the government declares in its motion. However, all of the claims would require the court to address decisions “in the realm of national security and foreign policy delegated to the political branches by the Constitution.”

The government asserts it would be wrong for the court to “second-guess a series of complicated policy decisions allegedly made by the Executive regarding whether to conduct a counterterrorism operation. The Executive makes such decisions, among other things, weighing sensitive intelligence information and diplomatic considerations, far afield from the judiciary’s area of expertise.”

If the court were to hear the claims brought on behalf of drone strike victims, the court would “risk reaching a conclusion different from the Executive about the propriety of the alleged counterterrorism operation.”

The government takes particular issue with the push by plaintiffs to have the strike declared unlawful.

“Such a declaration would run counter to the conclusion supposedly reached by the Executive that the alleged strike satisfied both domestic and international law, as well as applicable law of war principles,” according to the government. “Indeed, the varying decisions would lead to the type of embarrassment the political question doctrine seeks to avoid, not to mention interference with the Executive’s ability to present a ‘single-voiced statement of the government’s views.'” It would “pit the judiciary against the political branches of government”—a conflict the “political question doctrine seeks to avoid.”

The motion attempts to instill panic and suggests plaintiffs want the judiciary to “stand in the shoes of the political branches,” several years after the drone strike, and critique decisions, which may “open the flood gates for more foreign nationals to ask the district courts to review counterterrorism operations conducted abroad.”

When it comes to the argument the government violated the Torture Victims Protection Act, the government asserts U.S. government employees cannot be sued under the act, especially since they were involved in a “counterterrorism operation authorized by the U.S. government.” The government also challenges whether Faisal bin Ali Jaber should be able to act as a “next friend” and bring this case on behalf of

Additionally, the government argues the court would have to review the Executive’s conclusions that the government “lacked alternatives to a lethal strike, such as, for example, capturing the targets,” and the “operation would not cause unintended collateral damage in the form of civilian casualties.” This would undermine the Executive’s constitutional authority to “make policy decisions regarding whether and when to conduct counterterrorism operations to protect the national security of the United States.”

Through these arguments, the government seeks to to insulate the entire drone program and all past extrajudicial assassinations of alleged terrorism suspects from any judicial review, where a court might find strikes exceeded constitutional authority or flagrantly violated the law.

The burden is on the families of drone strike victims to uncover evidence of wrongdoing because the court will not permit plaintiffs to go through secret intelligence documents and examine decisions related to the strike.

Like victims of torture or unchecked mass surveillance, families of drone strike victims can only win standing to sue by pointing to evidence of criminal misconduct in documents they will never be allowed to access. And, even if they do get their hands on documents, as the government argues in this case, the officials involved in decisions are shielded by layers of bureaucracy setup to prove to a judge there are multiple points where “oversight” occurs so unlawful or criminal acts never deliberately occur.

This is how the Obama administration is able to operate an extrajudicial assassination program operate outside legal review, and how obtaining justice for the killing of innocent loved ones is nearly impossible for families of drone victims.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."