“[A] function of the separation of powers,”1 the political question doctrine is a “narrow exception” to the rule that courts are required to hear cases otherwise properly before them.2 In Baker v. Carr,3 the Supreme Court outlined six factors indicating the presence of a political question.4 Concurring in the Court’s most recent political question case, Zivotofsky ex rel. Zivotofsky v. Clinton,5 Justice Sotomayor noted those factors have “generated substantial confusion.”6 But one facet of the doctrine has remained constant — the Court has never held a statutory challenge to executive action to be nonjusticiable.7 Recently, in bin Ali Jaber v. United States,8 the D.C. Circuit continued a contrary intracircuit trend9 by holding that a statutory challenge to alleged extrajudicial killings in a drone strike was nonjusticiable.10 The court erred by failing to grapple with the statutory nature of the claim and avoided clarifying the legal framework governing lethal counterterrorism operations.
Salem bin Ali Jaber (Salem), a Yemeni imam noted for criticizing al Qaeda ideology, traveled to Khashamir, a village in eastern Yemen, in 2012 to attend a family wedding.11 After he delivered a sermon, three “local extremists” started looking for him.12 Waleed bin Ali Jaber (Waleed), Salem’s nephew and a local police officer, offered to accompany him to meet with the men.13 A U.S. drone then fired four Hellfire missiles at the area.14 The first two killed Salem, Waleed, and two of the men, while the remaining missiles killed the third man.15 The attack was allegedly a “signature strike,” in which the government identifies targets based on behavioral patterns, such as cell phone usage.16
Faisal bin Ali Jaber (Faisal), a relative of Salem acting on behalf of Salem’s and Waleed’s estates, invoked next-friend standing and filed suit against U.S. executive officials in the D.C. District Court.17 The plaintiffs sought a declaration that those officials committed extrajudicial killings in violation of the Torture Victims Protection Act18 (TVPA) and customary international law (CIL), enforceable via the Alien Tort Statute19 (ATS).20 The government moved to dismiss, arguing that Faisal could not serve as next friend and that the case was nonjusticiable.21
Senior Judge Huvelle found that the plaintiffs met the requirements for next-friend standing, but agreed with the government on nonjusticiability. On standing, she found Faisal was an appropriate “next friend” and the Yemeni conflict would make appearing in the United States impracticable for the estate representatives.22 On the political question issue, she first found that there were no judicially manageable standards to assess the imminence of threats, capture prospects, or the law of war requirement of proportionality.23 Second, she found that deciding the case required a “policy determination . . . for nonjudicial discretion” — namely, deciding to use force in Yemen.24
The D.C. Circuit affirmed.25 Judge Brown, writing for the panel,26 first found that the plaintiffs challenged the type of executive decision found nonjusticiable in El-Shifa Pharmaceutical Industries Co. v. United States.27 There, a Sudanese company filed an ATS claim against the United States for failing to provide compensation for an allegedly “mistaken” missile strike that destroyed its factory.28 The court found the case nonjusticiable, distinguishing between claims questioning the wisdom of military action, “a policy choice . . . constitutionally committed” to the political branches, and “legal issues such as whether the government had legal authority to act.”29 In the panel’s view, the bin Ali Jabers questioned “the wisdom of [the] Executive’s decision to commence military action — mistaken or not — against a foreign target,” thus falling on the nonjusticiable policy side of the two poles.30
Next, the panel rejected the plaintiffs’ reliance on Zivotofsky. Judge Brown interpreted Zivotofsky as “confirm[ing] no per se rule renders” foreign affairs cases nonjusticiable.31 In her view, the Court there was not tasked with independently evaluating the Executive’s position on Jerusalem, a discretionary policy decision, but instead was tasked with determining if a statute infringed on the Executive’s Article II authority.32 Situating the case in these terms, Judge Brown reasoned that the bin Ali Jabers’ complaint required the court to make a policy decision.33 Finally, the panel held that executive statements concerning international law were inapposite.34 Even though the Executive may announce its interpretation of the relevant law, the panel noted that the Executive cannot “concede authority to the Judiciary to enforce those rules.”35
Judge Brown also wrote a concurrence.36 She noted that El-Shifa sensibly prohibited judicial second-guessing of one-off uses of force by the Executive.37 By contrast, drone strikes are highly structured, “will be replicated hundreds . . . of times,” and are a preferred tactic in modern conflicts.38 In her view, “[a]ddressing these two . . . scenarios” with the same framework is impossible.39 She also bemoaned the Executive’s lack of accountability, claiming that executive self-policing is ineffectual and “congressional oversight is a joke.”40 She concluded by calling on the political branches to establish accountability mechanisms.41
The D.C. Circuit erred in holding that the bin Ali Jabers’ complaint was nonjusticiable. El-Shifa did not bind the court because its analysis was significantly undermined by the Supreme Court’s subsequent decision in Zivotofsky. Zivotofsky’s analytic framework confirmed, first, the need to distinguish a case’s subject from the issue in dispute, and, second, that statutory cases will ordinarily be justiciable because statutory interpretation is a core judicial task.42 Properly applying Zivotofsky’s framework should have led the bin Ali Jaber panel to the opposite result. The plaintiffs did not question the wisdom of the strike; rather, they sought a declaration that the strike violated a statute. Ultimately, the court’s erroneous holding avoided clarifying whether Congress has limited how the Executive conducts lethal counterterrorism operations. And the court upset separation of powers principles by refusing to independently determine the rights of the parties before it.
The political question doctrine plays a narrow role at the Court: since Baker, the Court has found only two claims nonjusticiable.43 In those cases, the Court relied on the first two Baker factors — a textual commitment of the issue to a coordinate branch44 and “a lack of judicially discoverable and manageable standards.”45 And in Zivotofsky, the Court mentioned only those factors.46 Nonetheless, lower courts frequently invoke the doctrine, especially in national security cases.47
Two features of Zivotofsky’s approach illustrate how to apply the doctrine in statutory cases. First, Zivotofsky distinguished a case’s subject matter, or a categorization of the circumstances giving rise to the dispute, from the issue to be adjudicated. In that case, the D.C. Circuit characterized the issue in terms of the recognition power — construing the court’s task as reviewing “the [sovereign] status of Jerusalem.”48 But the issue to be adjudicated was whether the plaintiff could “vindicate his statutory right . . . to have Israel recorded on his passport.”49
Second, as others have noted, Zivotofsky’s analysis indicates that the role for the political question doctrine is exceedingly small in statutory cases.50 “The existence of a statutory right . . . is certainly relevant” to justiciability.51 This is because analysis of the first Baker factor will be uniform for statutes: “there is . . . no exclusive commitment to the Executive of” constitutional or statutory interpretation.52 Likewise, under the second Baker factor, questions of legal interpretation will rarely “turn on standards that defy judicial application.”53 A statute providing for review of a self-judging constitutional provision may be nonjusticable.54 But no such statute was involved in El-Shifa or bin Ali Jaber.
The bin Ali Jaber panel relied on El-Shifa, but that opinion was undermined by Zivotofsky. First, El-Shifa conflated the case’s subject matter with the issue to be adjudicated. The plant owners filed suit under the ATS alleging that the President violated a duty to compensate victims of mistaken property destruction.55 The subject matter was the use of force,56 but the issue to be adjudicated was whether a cause of action should be recognized for the failure to provide compensation.
Second, El-Shifa held that reliance on a statute is irrelevant. The D.C. Circuit reasoned that “a statute providing for judicial review does not override Article III’s requirement” of dismissing political questions.57 But as the Court noted in Zivotofsky, the presence of a statute gets to the root of Baker’s textual commitment factor and the law/policy distinction.58 One cannot assume, as the El-Shifa court did, that a case challenges a “discretionary foreign policy decision[]”59 unless a determination is first made that the decision is discretionary. An executive action that contravenes the prohibition of a conduct-regulating statute is not discretionary, and the question of whether a statute supplies such a prohibition is a question of statutory interpretation for the courts.60
Distinguishing El-Shifa from Zivotofsky based on the jurisdictional nature of the ATS would be misguided. The Zivotofsky plaintiff claimed a clear statutory right to have Israel listed on his passport.61 By contrast, the El-Shifa plaintiffs relied on the ATS,62 a “jurisdictional statute.”63 One could argue that the ATS does not “directly regulate the Executive”64 in the same way and thus Zivotofsky’s analysis should not apply. But this argument is unconvincing for two reasons. First, ATS jurisdiction is exercised over a narrow set of CIL norms “defined with a [high degree of] specificity,”65 including norms against universally condemned conduct such as torture and extrajudicial killing.66 The prohibition on extrajudicial killing represents a clear conduct-regulating norm. Second, courts must exercise caution in recognizing ATS causes of action to avoid “impinging on the discretion” of the political branches.67 This reflects the very separation of powers motivating the political question doctrine. Zivotofsky’s reasoning should apply to ATS claims.68
Thus, the bin Ali Jaber panel should have held that it was not bound by El-Shifa in the wake of Zivotofsky; instead, it should have properly applied Zivotofsky’s analysis and reached the opposite result. First, while the case’s subject matter was the use of force abroad, the issue to be adjudicated was whether the drone strike violated the TVPA and the CIL prohibition on extrajudicial killing.69 Even assuming that Zivotofsky’s analysis should not apply to the ATS,70 the TVPA provides a statutory cause of action. Second, applying the first two Baker factors to this issue leads to the conclusion that the claims are justiciable. The case required determining if the statutes apply to drone strikes, and if they do, determining if the statutes are constitutional.
This analysis reveals the panel’s essential error. The court pointed to plaintiffs’ allegations — for example, that “[n]o urgent military purpose” justified the strike71 — and concluded that plaintiffs questioned a discretionary policy decision, or the “wisdom” of the strike decision.72 But that conclusion “puts the cart before the horse.”73 If a conduct-regulating statute prohibits the Executive from carrying out strikes that constitute extrajudicial killings, then the action was not discretionary.74
The question before the court was therefore whether the TVPA limits how drone strikes are conducted. The TVPA’s applicability to U.S. officials acting in concert with foreign state actors has not been addressed by the D.C. Circuit.75 This is plainly an ordinary question of statutory interpretation. If the TVPA applies, the issue would center on the permissibility of the killings under international law.76 The international framework applicable to counterterrorism operations is hotly contested.77 But in recent years, domestic courts have entered the debate, filling gaps and crafting “domestic humanitarian law.”78
The bin Ali Jabers raised a threshold question about the use of lethal force abroad, and addressing that question could have promoted the accountability Judge Brown viewed as being so deficient. A prerequisite for accountability is identifying standards. The Obama Administration’s legal position was that the United States is in an armed conflict with al Qaeda, the Taliban, and associated forces,79 and lethal force could be used to target those groups wherever they were subject to the laws of armed conflict.80 By contrast, other authorities hold that a law enforcement model governs outside territorial areas of active conflict.81 The bin Ali Jabers alleged Yemen was such an area at the time of the 2012 strike, directly raising the question.82 The difference between these positions is cavernous — under the former, lethal force can be used to target members of the opposing group and civilian harm is more permissible; under the latter, lethal force is only permissible as a last resort when an actor poses an imminent threat of death or injury.83 Assessments of executive accountability must address this dispute.
Instead of promoting accountability, the bin Ali Jaber court’s approach contravenes separation of powers principles. The Executive is subject to different incentives than the judiciary, particularly when it comes to balancing individual rights and national security.84 Independent judicial review would promote separation of powers principles by preserving the judicial role in legal interpretation. Moreover, as Judge Kavanaugh noted in his El-Shifa concurrence, nonjusticiability holdings in statutory cases imply that Congress cannot constrain the Executive.85
Judge Brown forcefully contended that an accountability gap exists with respect to drone strikes.86 But that gap is partly of the court’s own making: properly applying Zivotofsky would have forced the court to consider whether the TVPA imposes limits on drone strikes. By affirming on nonjusticiability grounds, the court not only shirked its duty to adjudicate the rights of the parties before it, but also missed the chance to take a step toward greater accountability by clarifying what legal standards govern those operations.