US court dismisses Jaber lawsuit for Yemen drone attack

Washington, DC – A US federal appeals court has thrown out a lawsuit by the families of two Yemeni men allegedly killed as innocent bystanders in a US drone attack in 2012 but one of the judges said US’ “democracy is broken” after announcing the ruling.

The unanimous ruling by a three-judge panel in Washington on Friday upheld a lower court’s finding that it had no say over the president’s drone programme.

The case began in 2015 when two family members of Faisal bin Ali Jaber, who brought the “wrongful death” case against then President Barack Obama in 2015, were killed by a drone attack Yemen in 2012.

Faisal’s nephew Waleed, 26, and brother-in-law Salem, a father of seven and noted anti-extremist imam, were killed in the attack along with three others.

Faisal’s lawsuit requested an apology from the US government and declaration that the attack was unlawful. The lawsuit did not seek monetary relief.

Judge Janice Rogers Brown, who was appointed by former President George W Bush and is known for her conservative decisions, agreed with two other judges that the president is the commander-in-chief of the armed forces and only Congress can provide oversight of his military actions.

“But congressional oversight is a joke, and a bad one at that,” Brown said in a separate opinion.

“This begs the question: if judges will not check this outsized power, then who will?”

The other two judges on the panel, both appointed by Obama, did not join her separate opinion. 

Shelby Sullivan-Bennis, a lawyer for rights group Reprieve which helped file the case, agreed with the judge, telling Al Jazeera that legal precedents which stop courts from ruling on “political questions” like the drone programme are outdated.

“When a senior judge raises an alarm about our democracy, it’s time to sit up and take notice,” Sullivan-Bennis said. “Judge Brown appears profoundly uncomfortable with her court giving our president carte blanche to kill innocents abroad.” 

READ MORE: Should we be scared of Trump’s drone reforms?

The United States has been conducting counterterrorism operations in Yemen for years. In 2013, Obama set tighter rules on drone attacks and promised greater transparency.

Jaber’s family died as a result of a “signature strike”. These attacks involve US intelligence deciding who is a viable target based on information obtained from electronic devices like mobile phones which detail location and calls made over an extended period.

Attacks may also be ordered as a result of intelligence or information given to US forces in the region. However, reports show the US is often unsure of who exactly it is targeting.

The guidelines for drone attacks implemented under Obama state that attacks “will be taken only when there is near certainty that the individual being targeted is, in fact, the lawful target and located at the place where the action will occur”.

The Trump administration has loosened these rules, making it easier for drone attacks to be ordered.

‘No current remedy’

Eric Lewis, one of the attorneys who argued the case in Washington, DC, believes the guidelines are not enough.

“The president can order innocent people killed because of faulty algorithms or bad intelligence and there is no current remedy,” Lewis said in a statement sent to Al Jazeera. 

Although Friday’s ruling was a defeat for Jaber and advocates of drone-policy reform, Sullivan-Bennis said Reprieve was “heartened” by Judge Brown’s comments.

The rights group is “weighing its options” on an appeal that would take them to the US Supreme Court, which could reverse the legal precedents prohibiting courts from overseeing the drone programme.

“We’re not alone in seeing the lack of oversight and the lack of transparency,” said Sullivan-Bennis.