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What it does 

Plaintiffs alleged that the drone strike violated the Torture Victim Protection Act (TVPA) and customary international law. The court ruled that it does not have jurisdiction to review the legality of the drone strike, which, by its nature, is “committed to the political branches to the exclusion of the judiciary.” Plaintiff has appealed, making this the first appeal involving a civilian victim of a covert drone strike to be heard in federal court.

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 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.

Decision Points 

The District Court first found that plaintiff had standing to sue on decedents’ behalf by demonstrating that it would impose significant hardships on the decedents’ estates to come to the US to litigate the claim.

The court then held that it did not have jurisdiction to hear the claim because the policies and values at play are committed to the other political branches and, as demonstrated by the court’s precedent, outside of judicial capacity to review.

The court cited numerous precedents (including Schneider v. Kissinger, 412 F.3d 190, 193 (D.D.C. 2005)) demonstrating that the political question doctrine bars judicial review of military action, except for constitutional claims and conduct that occurred outside of the scope of official duties. The political question doctrine derives from the separation of powers, and, as articulated by the court in Ali Jaber, “prevents courts from passing judgment on policy choices and value determinations that are ‘by their nature committed to the political branches to the exclusion of the judiciary.’”

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 United States District Court for the District of Columbia delivered its ruling on February 22, 2016.

Relevant Experts 

Major General Charles J. Dunlap, Jr., US Air Force (Ret.), is a professor of the practice of law at Duke University and Executive Director of the Center on Law, Ethics and National Security. His teaching and scholarly writing focus on national security, international law, civil-military relations, cyberwar, airpower, counter-insurgency, military justice, and ethical issues related to the practice of national security law.

Relevant publications:

  • Dunlap, Charles J. Forthcoming. "Accountability and Autonomous Weapons: Much Ado About Nothing." Temple International & Comparative Law Journal.
  • Dunlap, Charles J. 2014. “Clever or Clueless? Observations About Bombing Norm Debates.” In The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones, edited by Matthew A. Evangelista and Henry Shue. Ithaca: Cornell University Press.

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 plaintiff’s appeal is currently under review in the D.C. Circuit Court of Appeals.

Primary Author 
John W. Matthews, JD candidate
Sean Riley, MA; Michael Clamann, PhD
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