Torture

• Pages: 45-47

45

international law update Volume 23, April–June 2017

© 2017 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

TORTURE

In civilians’ claims for damages after

drone strike in Yemen, District of

Columbia Circuit affirms dismissal of

case on Political Question grounds

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. is

case concerned 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 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”). *243

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,” 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. e men f‌irst arrived in the

“early afternoon,” but Salem’s father told them

Salem was “visiting neighboring villages.” e 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.”

e 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] remained a

short distance away, watching the meeting.” 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. e third missile seemed to have

been aimed at where the third visitor was located....

e fourth strike hit the [men’s] car.” Plaintif‌fs’

contended a U.S.-operated drone deployed the four

Hellf‌ire missiles that killed the f‌ive men. *244

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. ereafter, 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. e

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 on political question grounds. Plaintif‌fs’

appealed. *245

e “f‌irst and fundamental question” the

Court was “bound to ask and answer” was whether

it had jurisdiction to decide this case. e political

question doctrine concerns the jurisdictional “‘case

or controversy’ requirement” of Article III of the

Constitution. “e 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, 82 S.Ct. 691,

7 L.Ed.2d 663 (1962). e 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, 106 S.Ct. 2860, 92 L.Ed.2d