D.C. Circuit Tosses Drone Strike Case

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit on Friday dismissed a challenge to the government's drone strike program by the family of unintended, innocent victims. The court ruled that the case raised a political question.

The ruling was unsurprising, given the state of the law. But one judge on the panel concurred in order to lodge a harsh criticism.

The case involves the family members of Salem and Waleed bin Ali Jaber, the unintended, innocent victims of a drone strike in Yemen. They sought a declaratory judgment that the strike violated the Torture Victims Protection Act and the Alien Tort Statute.

The D.C. Circuit upheld a lower court ruling that the case raised a nonjusticiable political question. Drawing on circuit precedent, the El-Shifa case, the court wrote:

It would be difficult to imagine precedent more directly adverse to Plaintiff's 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 [the] Executive's decision to commence military action--mistaken or not--against a foreign target. . . .

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.

Judge Brown, who also wrote the majority opinion, concurred with a scathing critique of the application of the political question doctrine to cases like this, especially given the lack of oversight in the other two branches:

Of course, this begs the question: if judges will not check this outsized power, then who will? . . . The President is the most equipped to police his own house. 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 secrecy; and it often seems the board's are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress perhaps? But congressional oversight is a joke--and a bad one at that. . . .

Our democracy is broken. We must, however, hope that it is not incurably so. . . . The Court's opinion . . . is all a Judiciary bound by precedent and constitutional constraints may permissibly claim. It is up to others to take it from here.