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Courts Must Hold Executive Branch Accountable for Drone Strikes

By       Message Marjorie Cohn       (Page 1 of 3 pages)     Permalink    (# of views)   3 comments

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In 2012, the bin Ali Jaber family gathered in Khashamir, Yemen, for a wedding celebration. Ahmed Salem bin Ali Jaber (Salem) was asked to deliver a guest sermon, which challenged al Qaeda to justify its attacks on civilians. In response to his sermon, three strange men arrived to see Salem.

Fearing trouble, Salem asked Waleed bin Ali Jaber (Waleed), a police officer, to accompany him to meet the three men. A US-operated drone deployed four Hellfire missiles, killing all five men. Salem and Waleed were not the intended targets of the drone strike. The three strangers were not "high-level, high-value targets to the United States." This was a "signature strike" in which the government targets anonymous suspected militants solely based on their pattern of behavior.

The Yemeni government ordered that the victims' families receive approximately $55,000 as "condolence" payments. When a member of Yemen's National Security Bureau offered a family member $1,000,000, the official stated the money was from the US government, but he later recanted when Faisal bin Ali Jaber (Faisal) asked the official to produce his statement in writing.

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Drone Victims' Relative Sues in Federal Court

Faisal, who was Salem's brother-in-law and Waleed's uncle, sued the US government in federal district court. He requested an apology for the wrongful deaths of his relatives and a declaration that the drone strike violated domestic and international law.

In the lawsuit, the plaintiff made the following allegations:

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-- "No urgent military purpose or other emergency justified" the drone strike;

-- Killing the alleged targets was not "strictly unavoidable" to defend against an "imminent threat of death" to the "United States or its allies"; 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 US or Yemeni forces or military objectives in the vicinity that were in need of protection against three young Yemeni men."

The district court dismissed the case, concluding it had no jurisdiction to adjudicate the issue of legality of the drone strike because that was a "political question" reserved to the executive branch.

On June 30, a three-judge panel of the Court of Appeals for the District of Columbia Circuit affirmed the dismissal. Relying on a prior decision of the DC Circuit, the judges ruled that courts cannot review military targeting decisions by the executive without violating the separation of powers doctrine.

Judge Janice Rogers Brown wrote for the panel, "It is not the role of the Judiciary to second-guess the determination of the Executive, in coordination with the Legislature, that the interests of the US call for a particular military action in the ongoing War on Terror."

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Courts Are Competent to Review Executive Targeting Decisions

As law professors Mary Ellen O'Connell and Douglas Cassel pointed out in their amicus brief filed in this case, courts regularly adjudicate the legality of the use of military force. They cited the United Nations Charter, which permits a country to attack another country only in self-defense or with the approval of the Security Council.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)
 

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