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
 3
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]
 4
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
 5
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
 6
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:
 7
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
 9
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
 10
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
 11
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.
 13
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).
 14
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.