'Democracy
is Broken': US Federal Courts Powerless Over Civilian Drone Deaths
Wednesday, July 05, 2017
The American justice system should provide recourse for the
families of civilians killed or injured by US drone strikes. A recent case in a
US federal appeals court failed this test.
In late August 2012, an imam by the name of Salem bin Ali Jaber
travelled with his family from Mukalla to the town of Khashamir in Yemen’s
eastern Hadhramout governorate to attend a relative’s wedding. Known for his
eloquent sermons and anti-extremist sentiments, Salem was invited to lead
prayers at the town’s mosque.
Suspected local al-Qaeda affiliates quickly got word of his
sermon denouncing their ideology and, within a few days, three men were
dispatched to search for him - twice at his father’s house and finally at the
mosque.
Once Salem was aware that these men were looking for him and
afraid of what they wanted, Salem asked that his nephew, a local policeman
named Waleed bin Ali Jaber, accompany him to meet them.
The group of five gathered outside and Salem sat down with two
of the men under a palm tree. Shortly thereafter, members of the Jaber family
“heard the buzzing of the drone, and then heard and saw the orange and yellow
flash of a tremendous explosion”. The first two strikes killed Salem, Waleed,
and two of the three men. Two more strikes were deployed, killing the remaining
man.
An unneccesary attack
Last week, the US Court of Appeals for the District of Columbia
Circuit dismissed a case brought forth by Salem’s brother-in-law and Waleed’s
uncle, Faisal bin Ali Jaber. Faisal charges that the US government mistakenly
killed the two noncombatants in a “signature strike”, in which an unidentified
target is pinpointed based on metadata that detects patterns of suspicious
behavior.
According to charges put forth by Faisal and two other
plaintiffs, the strike constituted a violation of international laws governing
the use of force, the Torture Victim Protection Act, and the Alien Tort
Statute, which allows foreign citizens to bring cases of human rights violations
committed outside the United States to American courts.
Faisal bin Ali Jaber speaks at
the National Press Club in Washington in November 2013 (AFP)
The plaintiffs allege that the attack was unnecessary, as there
was “no urgent military purpose or other emergency” to justify the drone strike
and that killing the alleged targets was not necessary to defend against an
imminent threat to the United States or its allies.
They also argue that the risk to nearby civilians was excessive
in comparison to the military objective since there was no evidence indicating
that the three men were legitimate military targets, and “there were no US or
Yemeni forces or military objectives in the vicinity that were in need of
protection against three young Yemeni men.”
According to their claim, the drone operator appeared to have
waited until Salem and Waleed joined the men to strike, indicating a violation
of international law since there was “ample opportunity to strike when the men
were (1) alone in the Yemeni countryside where they could be targeted without
fear of civilian casualties or (2) in locations where Yemeni officials could
easily take them into custody."
Dismissed cases
The opinion dismissing these charges (which can be read in full
here) states that federal courts cannot make determinations on actions carried
out by the executive branch of the government, thereby dismissing all of the
charges brought forth by Faisal.
“Plaintiffs will no doubt find this result unjust,” the opinion
reads, “but it stems from constitutional and pragmatic constraints on the
Judiciary. In matters of political and military strategy, courts lack 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.
“…It is the Executive, and not a panel of the DC Circuit, who
commands our armed forces and determines our nation’s foreign policy…Courts are
not constitutionally permitted to encroach upon executive powers, even when
doing so may be logistically, if not constitutionally, manageable.”
The opinion of the three circuit court judges cites a previous
case where the US struck a factory in Sudan in 1998 that it believed produced
chemical weapons.The factory’s owner, however, claimed that the facility
manufactured medicine and he brought a suit against the American government for
wrongfully targeting the plant, resulting in considerable financial losses.
The DC circuit court dismissed his case as well, on the grounds
that, “the courts cannot assess the merits of the president’s decision to launch
an attack on a foreign target”.
Seeking an apology, not money
On the evening of Salem and Waleed’s death, according to
testimonies in court, a Yemeni official spoke by telephone with several members
of the bin Ali Jaber family, including Faisal, to “convey personal condolences
for the wrongful deaths of Salem and Waleed,” but did not officially
acknowledge the strike.
Faisal first lobbied the Yemeni government to publicly
acknowledge the wrongful death of Salem and Waleed. The government instead
handed out $55,000 as a condolence payment to the families of those killed,
according to testimony. This was followed by $100,000 in cash bound with rubber
bands and offered to a relative of Salem by a member of Yemen’s National
Security Bureau who stated that the money was from the US government.
But Faisal is not seeking monetary compensation. He wants an
apology from the US government and a public acknowledgement of his relatives’
wrongful deaths.
Brandon Bryant, Cian Westmoreland, and Lisa Ling, Air Force and
Air National Guard technicians who have previously worked on drones and
military intelligence equipment, endorsed Faisal’s lawsuit and shared their
knowledge of the drone programme with the court.
In their 17-page filing, they describe the case of Salem and
Waleed as one among many where top-secret drone strikes mistakenly led to the
deaths of unknown victims who are subsequently labelled “enemy kills”.
A Yemeni boy walks past a mural
depicting a US drone that reads, 'Why did you kill my family?' (AFP)
Included under the court’s official decision is a supplementary
opinion by Judge Janice Rogers Brown, who offers critiques of the balance
between executive and judicial powers. According to her: “This begs the
question: if judges will not check this outsized power, then who will?”
She acknowledges that Congress alone cannot be relied on to
manage the drone programme, adding, “…congressional oversight is a joke, and a
bad one at that.”
“Democracy is broken,” she added.
Human rights group Reprieve, which helped Faisal file the case,
says it is “weighing its options” to help the plaintiffs with an appeal through
the Supreme Court that could override the legal precedents preventing federal
courts from overseeing decisions made by the executive branch.
Failing civilians
Since the deaths of Salem and Waleed bin Ali Jaber, the US has
ramped up targeted strikes in Yemen. Although the drone programme was a
favoured military strategy by former president Barack Obama, it has gained even
more traction under the Trump administration.
Local sources reported on the night of 1 July that
American-operated drones targeted and killed two alleged al-Qaeda members
riding a motorcycle in Yemen’s Abyan province. Details about the strike, or its
acknowledgement by the Department of Defense, have yet to be released.
As long as the US military continues to use drones in targeted
attacks, then we must also ensure that innocent civilians, who will inevitably
fall victim to remote strikes, have a way to seek recourse through the American
justice system.
If we
fail to provide families like the bin Ali Jabers with a simple apology that is
clearly owed to them, then how can we expect to build trusted alliances with
local communities that are so crucial in the fight against extremism?
© 2017
Middle East Eye
Hannah Porter is an independent researcher and journalist
focused on Yemen and the Gulf. She is also a Master's student at the University
of Chicago's Center for Middle Eastern Studies.
Donations can be sent
to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
21218. Ph: 410-323-1607; Email: mobuszewski2001 [at] comcast.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
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