Legal expert Asaf Lubin looks at a recent judgment by the D.C. Circuit concerning American drone strikes and calls for the reconstruction of the relationship between the Courts and the Executive.
On August 29th, 2012 an American drone strike in Yemen killed Ahmed Salem bin Ali Jaber, an imam who preached against al-Qaeda’s ideology.
Salem was not the target, but a collateral damage. That attack was aimed at 3 al-Qaida members which Salem was meeting in an attempt to try and change their views. Faisal bin Ali Jaber, one of Salem’s family members, received 100,000$ as condolence payments from the U.S. but no official apology nor recognition of fault was ever provided by the Government. So he brought a federal lawsuit.
On Friday 30, 2017, the United States Court of Appeals for the D.C. Circuit issued its much-anticipated judgment. The Court dismissed the case as a nonjusticiable political question. The Court argued that “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”.
The Court completely ignored decades of legal evolution in the way modern warfare is conducted
In my humble opinion, the Court completely ignored decades of legal evolution in the way modern warfare is conducted. The Court was never called to meddle in the way the President commands the armed forces or runs his foreign policy. Rather, the Court was asked to acknowledge that modern-day premeditated remote drone strikes involve substantive legal discourse and legal interpretation.
This kind of discourse and interpretation is in fact deeply within the “wheelhouse of the judiciary” as the D.C. Circuit termed it. Courts are thus well-equipped, not ill-equipped, to engage in these analyses and to assess the legal standards adopted by the executive prior to launching these strikes.
If the D.C. Circuit Judges are so insecure about their abilities, I would encourage them to watch Season 7, Episode 15 of the “Good Wife” or the movie “Eye in the Sky”. If Alicia Florrick is qualified to determine who is a “lawful combatant” under the Geneva Conventions, and Colonel Katherine Powell turns to a battery of lawyers to determine what is a proportionate “collateral damage” in times of war – then I think a panel of D.C. judges has the relevant skill set too.
The introduction of robust internal regulations, by both the Bush and Obama administrations, on their drone programs – further solidifies this point.
The D.C. Circuit considers this an act of voluntary “self-regulation” and therefore not “an invitation to the Judiciary to intrude upon the traditional executive role”. They are simply wrong.
The Bush and Obama administrations introduced these guidelines because they were required to do so under the treaties of international humanitarian law binding in the United States. Far from lacking authority, the Court has the ultimate authority to “say what the law is,” by construing these treatises and addressing the “purely legal question[s]” derived from them. In fact, the Court must do so, for otherwise there will be no judicial check where such is obligatory.
Judge Brown’s Extraordinary Concurrence
The only silver lining in an otherwise disappointing ruling is the incredible 7-page concurring opinion of a Judge Janice Rogers Brown, who was nominated to the court by President George W. Bush.
While she still concurs with the ratio of the judgment, her powerful message rings so clearly. If you read nothing else today, you must read this in full. One particular segment stands out:
“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.”
Judge Brown is correct. The Executive and Congress must establish clear policies, but the Court should play a role too.
Asaf Lubin is a J.S.D. candidate at Yale Law School and a Resident Fellow with the School’s Information Society Project. His research focuses on the regulation of intelligence collection and analysis under international law, with particular emphasis on the effects that technological advancements have had on the practice of espionage and the right to privacy in an age of mass governmental surveillance.