international law update Volume 23, April–June 2017
© 2017 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) |
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 Salems 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

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