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What it does 

The DC Circuit of Appeals upheld the D.C. District Court’s ruling (SciPol brief available) that it does not have jurisdiction to review the legality of a drone strike, which by its nature, is “committed to the political branches to the exclusion of the judiciary.” The DC Circuit explained further, stating, “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.”

The facts 

Salem and Waleed bin Ali Jaber (“Salem” and “Waleed”) were killed in an August 29, 2012 drone strike in Yemen. Their estates, through a family representative, sued in the District Court of the District of Columbia claiming that the killings violated the Torture Victim Protection Act (TVPA) and international law.

Salem was a moderate Islamic preacher in an isolated village called Khashamir. He had recently criticized al Qaeda; three young men visited the town on August 29 and asked to speak to him. Salem feared he might be in danger. His nephew, Waleed, a police officer, offered to accompany him. Salem, Waleed, and two of the men sat under a palm tree while a third watched from farther away. Subsequently members of the village heard the buzzing of a drone; two missiles struck the group under the tree, one the man standing further away, and one the vehicle they had arrived in, killing all five.

Plaintiffs allege that the strike was carried out by the US, which has engaged in covert drone strikes in Yemen since 2002. Plaintiff asserts that this was a “signature” strike, “in which an unidentified person is targeted based upon a pattern of suspicious behavior” and that the three men were unlikely to be high-level members of al Qaeda. Plaintiff also asserts that they posed no urgent threat to the village or the US, and, even if they did, they must have been tracked to the village, so the strike could have been made earlier without endangering civilians.

Procedural History 

The district court dismissed their claims primarily on political question grounds, which bars judicial review of military action outside of constitutional claims and conduct that occurs outside the scope of official duty. Plaintiffs appealed, making this the first appeal involving a civilian victim of a covert drone strike to be heard in federal court.

Decision Points 

The DC Circuit Court of Appeals cited numerous precedents further showing the political question doctrine bars judicial review of military action.

First, the court used Baker v. Carr to articulate the contours of the doctrine, stating they only needed to find one of the following factors:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentially of embarrassment from multifarious pronouncements by various departments on one question.

Next, the court used El-Shifa Pharmaceutical Industries Co. v. United States, which determined that a court’s decision on whether the United States’s attack on a plant was mistaken, and hence not justified, and whether the determination of factual validity of the government’s stated reasons for the strike falls within the political question doctrine. These questions, the court held, are “the province of the political branches, regardless of the statutes under which Plaintiffs may seek to sue."

Even further, the court made a lack of competency argument rooted in Gilligan v. Morgan, determining the judiciary lacks the competence necessary to determine whether the use of force was justified:

The complex, subtle, and professional decisions as to the … control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.

Finally, Circuit Judge Brown concurred, warning that “effective supervision of this wondrous new warfare will not be provided by US courts.” He explains that the spread of drones cannot be stopped, but clarifies the US can still have an influence in how they are used in the global community. He claims “[t]he Executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability.”

Relevant Science 

Plaintiffs allege that the incident was a “signature” strike, in that the drone operators did not know who they were targeting, but instead fired based on other indications that they were al Qaeda operatives. Plaintiff’s complaint describes targets of signature strikes as “selected based on a cocktail of data – largely signals intelligence – such as an unidentified person's cell phone usage, travel patterns and believed associates.”

Where & When 

The DC Circuit Court of Appeals upheld the district court’s ruling on June 30, 2017.


The Appellants were represented by Jeffrey D. Robinson. He was joined in the briefs by Eric L. Lewis, Tara J. Plochocki, and Brent Nelson Rushforth.

The Appellee was represented by Katherine Twomey Allen, Attorney for the US Department of Justice. She was joined in the briefs by Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Douglas N. Letter and H. Thomas Byron, III, Attorneys.


There are no current appeals from this case.

Relevant Experts 

Mary (Missy) Cummings, PhD, is Professor in Duke’s Department of Mechanical Engineering and Materials Science, Associate Professor in the Department of Electrical and Computer Engineering, an Associate of the Duke Initiative for Science & Society, and the director of Duke’s Humans and Autonomy Lab (HAL). Her research interests include human-unmanned vehicle interaction, human-autonomous system collaboration, human-systems engineering, public policy implications of unmanned vehicles, and the ethical and social impact of technology.

Relevant publication:

  • Cummings, Mary L. 2017. “Artificial Intelligence and the Future of Warfare.” London: International Security Department and US and the Americas Programme, Chatham House.

The political question doctrine allows federal courts to excuse themselves from deciding certain issues based on a lack of jurisdiction. This lack of jurisdiction arises because the Executive is viewed as being fully responsible for questions of foreign relations and the decisions made about military action.

Primary Author 
Bobbie Burrows, JD/MA candidate; John W. Matthews, JD candidate
Sean Riley, MA; Michael Clamann, PhD, CHFP
Recommended Citation 

Duke SciPol, “Ali Jaber v. United States” available at (02/26/2018).

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