An experienced judge has today described American democracy as “broken” and Congressional oversight as a “joke” in their failure to check the US drone killing program.
In a concurring opinion in the DC Court of Appeals case Jaber v. Trump, Judge Janice Rogers Brown appears troubled that the law prevents her court from acting as a check on potential executive war crimes. Calling lethal drone strikes an “outsized power”, she questioned who would be left apart from the judiciary to keep them in check.
The case was brought by Faisal bin ali Jaber, a Yemeni engineer whose innocent family members were mistakenly killed by a US drone in 2012. It sought an apology and a declaration that the strike was unlawful.
The federal appeal court decided unanimously that it could not rule on the matter, citing precedent preventing the judicial branch from adjudicating ‘political questions’. However, the concerns expressed by Judge Brown, a G.W. Bush appointee, suggests the case raises more questions than it answers.
Reprieve US attorney Shelby Sullivan-Bennis said:“When a judge sounds the alarm about our democracy, citing her own court’s limitations, it’s time to sit up and take notice. Judge Brown appears uncomfortable with giving our President carte blanche to kill innocents abroad. She is right to ask who will check the power of the US executive. The bleak answer today is ‘no one.'”
Eric Lewis, Partner at Lewis Baach Kaufmann Middlemiss pllc, said:“When the judiciary has no role to play in preventing war crimes, ‘democracy is broken’ — in the words of appellate judge Janice Rogers Brown in a remarkable concurrence.
“The Al Jaber case highlights a structural problem under current law. The President can order innocent people killed because of faulty algorithms or bad intelligence and there is no current remedy. In the new world of modern remote warfare there must be oversight and Judge Rogers Brown’s opinion is a courageous call for the Supreme Court to prevent impunity in the commission of war crimes by an unchecked executive.”
Notes to Editors
1) The judgment can be found here:
and more on the case here:
2) Reprieve is an international human rights organization. Reprieve US, based in New York City, can be contacted on Katherine [dot] oshea [at] reprieve.org / +1 917 855 8064. Reprieve’s London office can be contacted on: communications [at] reprieve.org.uk / +44 (0) 207 553 8140.
3) In November 2014, Faisal bin ali Jaber traveled 7,000 miles to Washington DC, where he met several members of Congress and at least one White House official. No-one from the Government would admit that the strike even happened. Mr Jaber was featured on the front page of the New York Times and later had a letter to editor published.
Jaber v Obama was first launched in June 2015. In October 2015, the district court dismissed the case on “political question” grounds, holding that the use of military force abroad was within the discretion of the Executive and un-reviewable by courts. The court also held that the courts were ill-equipped to assess whether a strike satisfied the legal requirement that a target pose an imminent threat to a U.S. life and that capture is infeasible. The ruling suggested that even the most heinous war crimes by the U.S. government are beyond the reach of the U.S. Courts.
President Obama’s apology for the deaths of two Western victims of US drone strikes in Pakistan – Giovanni Lo Porto, and Warren Weinstein – can be seen here. The Guardian’s video series on six Reprieve drone clients – in which the Obama Administration denies valuing some lives above others – can be seen here. Reprieve’s research on US kill lists and ‘multiple kills’ in the US drone program are available respectively here and here.