The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The U.S. Court of Appeals for the D.C. Circuit released eight opinions on Friday on a wide range of subjects. One case, however, is likely to prompt substantial discussion and debate over the extent to which the political question doctrine precludes judicial review of national security measures, such as drone strikes overseas—and at least one judge wants it that way.
In Ahmed Salem Bin Ali Jaber v. United States, a D.C. Circuit panel rejected a challenge to allegedly unlawful drone strikes. Judge Janice Rogers Brown's opinion for the court begins:
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 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.
The court ultimately concludes that these claims are nonjusticiable under the political question doctrine, largely relying upon the D.C. Circuit's prior opinion in El-Shifa Pharmaceutical Industries v. United States. In that case, the D.C. Circuit, sitting en banc, dismissed claims brought by owners of a Sudanese pharmaceutical plant destroyed by the U.S. military.
As Brown's opinion concludes:
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.
That's not all Brown had to say in this case, however. She also wrote a separate concurring opinion expressing serious concerns about the current state of affairs. Her separate opinion begins:
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.
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," . . . The President is the most equipped to police his own house. . . . 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 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:
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.