United States Court of Appeals, District of Columbia Circuit
Ahmed Salem Bin Ali Jaber, Personal representative of the estate of Salem Bin Ali Jaber, by his next friend Faisal Bin Ali Jaber and Esam Abdullah Abdulmahmoud Bin Ali Jaber, Personal representative of the estate of Waleed Bin Ali Jaber, by his next friend Faisal Bin Ali Jaber, Appellants
United States of America, et al., Appellees
December 13, 2016
from the United States District Court for the District of
Columbia (No. 1:15-cv-00840)
Jeffrey D. Robinson, pro hac vice, argued the cause for
Appellants. With him on the briefs were Eric L. Lewis, Tara
J. Plochocki, and Brent Nelson Rushforth.
Kathleen McClellan and Jesselyn Radack were on the brief for
amici curiae Brandon Bryant, Lisa Ling, and Cian Westmoreland
in support of Appellants.
Katherine Twomey Allen, Attorney, U.S. Department of Justice,
argued the cause for Appellee. With her on the briefs were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Douglas N. Letter and H. Thomas Byron, III,
D. Schwinn was on the brief for amicus curiae The John
Marshall Law School International Human Rights Clinic in
support of Appellants.
E. O'Connell was on the brief for amici professors Mary
Ellen O'Connell and Douglas Cassel in support of
Before: Brown, Srinivasan and Pillard, Circuit Judges.
the terrorist attacks of September 11, 2001, Congress
authorized the President "to use all necessary and
appropriate force" against al-Qaeda, the Taliban, and
associated forces. See Authorization for Use of
Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat. 224
(2001). Since then, the Executive has increasingly relied
upon unmanned aerial vehicles, or "drones, " to
target and kill enemies in the War on Terror. This case
concerns an alleged drone misfire-a bombing that resulted in
unnecessary loss of civilian life.
Ahmed Salem bin Ali Jaber ("Ahmed") and Esam
Abdullah Abdulmahmoud bin Ali Jaber ("Esam"),
through their next friend Faisal bin Ali Jaber
("Faisal"), seek a declaratory judgment stating
their family members were killed in the course of a U.S.
drone attack in violation of international law governing the
use of force, the Torture Victim Protection Act
("TVPA"), and the Alien Tort Statute
("ATS"). The district court dismissed their claims
primarily on political question grounds, and Plaintiffs
appeal. At this stage of proceedings, we must accept all
factual allegations asserted in the Complaint as true.
See, e.g., Tri-State Hosp. Supply Corp. v.
United States, 341 F.3d 571, 572 n.1 (D.C. Cir. 2003).
late-August 2012, the bin Ali Jaber family gathered in
Khashamir, Yemen for a week-long wedding celebration. On
August 24th, Ahmed Salem bin Ali Jaber ("Salem"),
an imam in the port town of Mukalla, was asked to give a
guest sermon at a local Khashamir mosque. His sermon, a
direct "challenge[ to] al Qaeda to justify its attacks
on civilians, " JA 19, apparently did not go overlooked
by local extremists. On August 29th, three young men arrived
at Salem's father's house and asked to speak with
first arrived in the "early afternoon, " but
Salem's father told them Salem was "visiting
neighboring villages." JA 20. The three men left and
returned around 5:00pm that same day, when Salem's father
informed them they might find Salem "at the mosque after
evening prayers." JA 21. The men again departed before
reappearing at the mosque around 8:30pm. Fearful of the men,
Salem asked Waleed bin Ali Jaber ("Waleed"), one of
the town's two policemen, to accompany him to meet them.
According to the Complaint, "Two of the men sat down
with Salem under a palm tree near their parked car, while the
third [man] remained a short distance away, watching the
meeting." JA 21.
thereafter, members of the bin Ali Jaber family "heard
the buzzing of the drone, and then heard and saw the orange
and yellow flash of a tremendous explosion."
Ibid. According to witnesses, "the first two
strikes directly hit Salem, Waleed[, ] and two of the three
strangers. The third missile seemed to have been aimed at
where the third visitor was located . . . . The fourth strike
hit the [men's] car." JA 21-22. Plaintiffs now
contend a U.S.-operated drone deployed the four Hellfire
missiles that killed the five men.
allege the three visiting men-and not Salem or Waleed-were
the intended targets of the attack, and those men were not
"high-level, high-value targets to the United
States." JA 10. The Complaint further states the men had
driven "for a significant distance outside populated
areas in order to reach Khashamir, " and "loitered
alone for a significant period before meeting with Salem and
Waleed." Ibid. Plaintiffs, therefore, conclude,
The three young men seeking Salem could have been interdicted
earlier in the day at manned checkpoints close to the village
along both roads in and out of Khashamir. If [a] more robust
detaining force was called for, an allied [i.e.,
Yemeni] military base was only 2.5-3 kilometers away from
where the missiles hit.
JA 39 (second alteration in original).
evening, 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 [he] offered no
official acknowledgement of or redress for the strike."
JA 11. In response to Faisal's repeated attempts to lobby
officials first in Yemen and later in the U.S., the
"Yemeni government ordered the families receive the
equivalent of around $55, 000 U.S. in Yemeni currency, "
which it described as a "condolence" payment. JA
30-31. Later, a member of Yemen's National Security
Bureau offered a family member $100, 000 in U.S. dollars; he
originally stated the money was from the U.S. government but
later recanted once Faisal asked for the statement in
writing. After trying in vain to receive official recognition
for the attack from elected officials, Plaintiffs now turn to
allege Salem and Waleed were collateral damage in a
"signature strike, " an attack where the U.S.
targets an unidentified person (here, the three men) based on
a pattern of suspicious behavior as identified through
metadata. Plaintiffs further claim "the drone
operator(s) waited until Salem and Waleed joined the three
[men] to strike, " JA 40, in 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
after this lawsuit was filed, the government successfully
moved under the Westfall Act, 28 U.S.C. § 2679, to
substitute the United States for the named defendants as to
all counts except those under the TVPA. Thereafter, the
government moved to dismiss this action for lack of subject
matter jurisdiction and failure to state a claim upon which
relief may be granted. The district court granted the motion
on Federal Rule of Civil Procedure 12(b)(1) grounds. It held,
while Faisal had "next friend" standing to bring
suit on Plaintiffs' behalf, Plaintiffs' claims were
nonetheless barred on political question grounds. The
district court further stated, "[P]laintiffs' claims
would [also] face insurmountable barriers on the merits"
since "previous exposure to illegal conduct does not in