North Carolina Law Review

University of North Carolina School of Law

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Define the AUMF or Else Drone On: The D.C. Circuit's Incomplete Work in Bin Ali Jaber v. United States

April 15, 2018

96 N.C. L. Rev. Addendum 1

 

The terrorist attacks of September 11, 2001 occurred almost seventeen years ago, but their consequences continue to be felt around the world. The United States remains engaged across the globe, particularly in Southwest and Central Asia, in a “war on terrorism.” Whatever consequences are felt at home, the human toll is felt deeply abroad, as exemplified by the litigants of Bin Ali Jaber v. United States. As part of the War on Terror, the United States has been conducting a quasi-secret program of missile strikes fired from unmanned aerial vehicles (“UAVs”) (also known as “drones”) at suspected terrorists since at least November 2001. The plaintiffs, Salem and Waleed bin Ali Jaber, were not suspected terrorists, but in August 2012, they were killed after being caught in the crossfire of a U.S. missile strike.

 

When surveyed, fifty-eight percent of Americans approved of the drone program. The reason for approval is unclear; likely, the relatively low cost (both in tax dollars and in soldiers’ lives) makes it seem preferable to “boots on the ground” alternatives. But the program is not without controversy. Some commentators worry that the United States may begin to deliver lethal force more liberally since the lives of American service-members are not as immediately at stake. Others are made uncomfortable by the program’s secrecy, particularly considering the fact that some of its victims have been American citizens. The executive branch has attempted to clarify the scope of the program and provide reassurances of internal oversight, but not all are satisfied.

 

Given this worry and controversy, a lawsuit over the legality of one such drone strike would seem to be an event of public interest. After the deaths of Salem and Waleed, the bin Ali Jaber family filed suit in U.S. federal court, alleging the errant missile attack was an extrajudicial killing that qualified for relief under U.S. law. The U.S. Court of Appeals for the D.C. Circuit, without any consideration of the merits of the claim, dismissed it upon a finding that it presented a “political question”—meaning that the court system is not an appropriate forum in which to hear the case.

 

This Recent Development argues that the D.C. Circuit reached the correct outcome despite its incomplete reasoning.

 

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