“[A] function of the separation of powers,”1×1. Baker v. Carr, 369 U.S. 186, 217 (1962). the political question doctrine is a “narrow exception” to the rule that courts are required to hear cases otherwise properly before them.2×2. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012). In Baker v. Carr,3×3. 369 U.S. 186. the Supreme Court outlined six factors indicating the presence of a political question.4×4. Id. at 217. Concurring in the Court’s most recent political question case, Zivotofsky ex rel. Zivotofsky v. Clinton,5×5. 566 U.S. 189. Justice Sotomayor noted those factors have “generated substantial confusion.”6×6. Id. at 202 (Sotomayor, J., concurring in part and concurring in the judgment). But one facet of the doctrine has remained constant — the Court has never held a statutory challenge to executive action to be nonjusticiable.7×7. See El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 856 (D.C. Cir. 2010) (en banc) (Kavanaugh, J., concurring in the judgment); Chris Michel, Comment, There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton, 123 Yale L.J. 253, 255 (2013). Recently, in bin Ali Jaber v. United States,8×8. 861 F.3d 241 (D.C. Cir.), cert. denied, 138 S. Ct. 480 (2017). the D.C. Circuit continued a contrary intracircuit trend9×9. See, e.g., El-Shifa, 607 F.3d at 842–44; Harbury v. Hayden, 522 F.3d 413, 419–20 (D.C. Cir. 2008); Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1261 (D.C. Cir. 2006). by holding that a statutory challenge to alleged extrajudicial killings in a drone strike was nonjusticiable.10×10. bin Ali Jaber, 861 F.3d at 245–50. 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.11×11. Complaint at 2, 13–14, Ali Jaber v. United States, 155 F. Supp. 3d 70 (D.D.C. 2016) (No. 15-0840). After he delivered a sermon, three “local extremists” started looking for him.12×12. bin Ali Jaber, 861 F.3d at 243. Waleed bin Ali Jaber (Waleed), Salem’s nephew and a local police officer, offered to accompany him to meet with the men.13×13. Complaint, supra note 11, at 9, 15. A U.S. drone then fired four Hellfire missiles at the area.14×14. bin Ali Jaber, 861 F.3d at 244. The first two killed Salem, Waleed, and two of the men, while the remaining missiles killed the third man.15×15. Id. The attack was allegedly a “signature strike,” in which the government identifies targets based on behavioral patterns, such as cell phone usage.16×16. Complaint, supra note 11, at 3.
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.17×17. Id. at 7–11. The United States was later substituted for the individual defendants on the Alien Tort Statute, 28 U.S.C. § 1350 (2012), claims. bin Ali Jaber, 861 F.3d at 244. The plaintiffs sought a declaration that those officials committed extrajudicial killings in violation of the Torture Victims Protection Act18×18. 28 U.S.C. § 1350 note. (TVPA) and customary international law (CIL), enforceable via the Alien Tort Statute19×19. Id. § 1350. (ATS).20×20. Ali Jaber v. United States, 155 F. Supp. 3d 70, 73 (D.D.C. 2016). The government moved to dismiss, arguing that Faisal could not serve as next friend and that the case was nonjusticiable.21×21. Id. at 75, 77. The government also argued that the TVPA claim failed because the defendants were not acting under color of foreign law, Defendants’ Memorandum of Points and Authorities in Support of Their Motion to Dismiss at 20–23, Ali Jaber, 155 F. Supp. 3d 70 (No. 15-0840), and that the court lacked subject matter jurisdiction under the ATS, id. at 24–27.
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.22×22. Ali Jaber, 155 F. Supp. 3d at 76–77. 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.23×23. Id. at 78. Second, she found that deciding the case required a “policy determination . . . for nonjudicial discretion” — namely, deciding to use force in Yemen.24×24. Id. at 79 (quoting El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 845 (D.C. Cir. 2010) (en banc)).
The D.C. Circuit affirmed.25×25. bin Ali Jaber, 861 F.3d at 250. Judge Brown, writing for the panel,26×26. Judge Brown was joined by Judges Srinivasan and Pillard. first found that the plaintiffs challenged the type of executive decision found nonjusticiable in El-Shifa Pharmaceutical Industries Co. v. United States.27×27. 607 F.3d 836; bin Ali Jaber, 861 F.3d at 246. 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.28×28. bin Ali Jaber, 861 F.3d at 246. 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.”29×29. Id. (quoting El-Shifa, 607 F.3d at 842). 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.30×30. Id.
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.31×31. Id. at 248. 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.32×32. Id. at 248–49. Situating the case in these terms, Judge Brown reasoned that the bin Ali Jabers’ complaint required the court to make a policy decision.33×33. Id. at 249. Finally, the panel held that executive statements concerning international law were inapposite.34×34. Id. 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.”35×35. Id.
Judge Brown also wrote a concurrence.36×36. Id. at 250 (Brown, J., concurring). She noted that El-Shifa sensibly prohibited judicial second-guessing of one-off uses of force by the Executive.37×37. Id. at 252. By contrast, drone strikes are highly structured, “will be replicated hundreds . . . of times,” and are a preferred tactic in modern conflicts.38×38. Id. In her view, “[a]ddressing these two . . . scenarios” with the same framework is impossible.39×39. Id. She also bemoaned the Executive’s lack of accountability, claiming that executive self-policing is ineffectual and “congressional oversight is a joke.”40×40. Id. at 253. She concluded by calling on the political branches to establish accountability mechanisms.41×41. Id.
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.42×42. See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012). Writing separately, Justice Sotomayor countered the implication that “no statute could give rise to a political question.” Id. at 208 (Sotomayor, J., concurring in part and concurring in the judgment). 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.43×43. Nixon v. United States, 506 U.S. 224, 229–38 (1993) (challenge to the Senate’s impeachment trial procedures); Gilligan v. Morgan, 413 U.S. 1, 6–7 (1973) (request for continuing judicial surveillance of Ohio National Guard’s training and operating procedures). The nonjusticiability of political gerrymandering claims has not commanded a majority of the Court. See Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (plurality opinion). In those cases, the Court relied on the first two Baker factors — a textual commitment of the issue to a coordinate branch44×44. See Gilligan, 413 U.S. at 6–7. and “a lack of judicially discoverable and manageable standards.”45×45. Nixon, 506 U.S. at 228. And in Zivotofsky, the Court mentioned only those factors.46×46. Zivotofsky, 566 U.S. at 195. The Court made no mention of the remaining prudential factors. See The Supreme Court, 2011 Term — Leading Cases, 126 Harv. L. Rev. 176, 314 (2012). Nonetheless, lower courts frequently invoke the doctrine, especially in national security cases.47×47. See Stephen I. Vladeck, Essay, The New National Security Canon, 61 Am. U. L. Rev. 1295, 1321–25 (2012); see also Gwynne Skinner, Misunderstood, Misconstrued, and Now Clearly Dead: The “Political Question Doctrine” as a Justiciability Doctrine, 29 J.L. & Pol. 427, 428–30 (2014).
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.”48×48. Zivotofsky v. Sec’y of State, 571 F.3d 1227, 1231 (D.C. Cir. 2009), vacated, 566 U.S. 189 (2012). But the issue to be adjudicated was whether the plaintiff could “vindicate his statutory right . . . to have Israel recorded on his passport.”49×49. Zivotofsky, 566 U.S. at 195.
Second, as others have noted, Zivotofsky’s analysis indicates that the role for the political question doctrine is exceedingly small in statutory cases.50×50. See Michel, supra note 7, at 259–60. “The existence of a statutory right . . . is certainly relevant” to justiciability.51×51. Zivotofsky, 566 U.S. at 196. 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.52×52. Id. at 197; see also Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986) (reasoning that interpreting treaties and legislation is within the authority of the federal courts). Likewise, under the second Baker factor, questions of legal interpretation will rarely “turn on standards that defy judicial application.”53×53. Zivotofsky, 566 U.S. at 201 (quoting Baker v. Carr, 369 U.S. 186, 211 (1962)). A statute providing for review of a self-judging constitutional provision may be nonjusticable.54×54. One hypothetical example would be a statute providing for review of impeachment procedures. Cf. Nixon v. United States, 506 U.S. 224, 231–32 (1993) (interpreting the Impeachment Clause as conferring exclusive authority on the Senate to develop impeachment trial procedures). 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.55×55. El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 844 (D.C. Cir. 2010) (en banc). The subject matter was the use of force,56×56. See id. at 844–45. 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.57×57. Id. at 843. Even before Zivotofsky, Judge Kavanaugh suggested that statutory cases could not present political questions. See id. at 855 (Kavanaugh, J., concurring in the judgment). 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.58×58. See Zivotofsky, 566 U.S. at 196. One cannot assume, as the El-Shifa court did, that a case challenges a “discretionary foreign policy decision”59×59. El-Shifa, 607 F.3d at 844. 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.60×60. “Conduct-regulating” is used in contradistinction to “authority-granting.” For example, Congress conferred authority on the Secretary of State to designate foreign terrorist organizations if she finds that a group’s activities “threaten the security of United States nationals.” 8 U.S.C. § 1189(a)(1) (2012). Authority-granting statutes do not necessarily present political questions. Challenges should be dismissed on the merits if a statute confers exclusive authority on the Executive. See Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
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.61×61. Zivotofsky, 566 U.S. at 196. By contrast, the El-Shifa plaintiffs relied on the ATS,62×62. El-Shifa, 607 F.3d at 854–55 (Kavanaugh, J., concurring in the judgment). a “jurisdictional statute.”63×63. Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004). One could argue that the ATS does not “directly regulate the Executive”64×64. bin Ali Jaber, 861 F.3d at 248. 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,”65×65. Sosa, 542 U.S. at 725. including norms against universally condemned conduct such as torture and extrajudicial killing.66×66. See id. at 731–32; Romero v. Drummond Co., 552 F.3d 1303, 1315–16 (11th Cir. 2008); Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1250–51 (11th Cir. 2005) (per curiam). 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.67×67. Sosa, 542 U.S. at 727; see also id. at 727–28 (cautioning courts to be wary of “risks of adverse foreign policy consequences,” id. at 728); Skinner, supra note 47, at 459–60. This reflects the very separation of powers motivating the political question doctrine. Zivotofsky’s reasoning should apply to ATS claims.68×68. A prior challenge to an anticipated lethal counterterrorism operation involved constitutional and ATS claims, and all the claims were held to be nonjusticiable. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 12, 52 (D.D.C. 2010). While Zivotofsky’s analysis suggests that the ATS claim should have been justiciable, that analysis does not apply to the constitutional claims.
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.69×69. bin Ali Jaber, 861 F.3d at 246. Even assuming that Zivotofsky’s analysis should not apply to the ATS,70×70. Whether or not the ATS claim is justiciable, it would be barred because the United States holds sovereign immunity. See, e.g., Tobar v. United States, 639 F.3d 1191, 1196 (9th Cir. 2011). But the government cannot be substituted as a defendant on the TVPA claim because substitution is not permitted where a claim alleges a violation of a federal statute. See 28 U.S.C. § 2679(b)(1), (2)(B) (2012). Unlike the ATS, which does not constitute a federal statute for purposes of § 2679 because it is jurisdictional, see Ali v. Rumsfeld, 649 F.3d 762, 775–76 (D.C. Cir. 2011), the TVPA creates a statutory cause of action, and thus the sovereign immunity bar does not apply. 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 strike71×71. bin Ali Jaber, 861 F.3d at 246 (quoting Complaint, supra note 11, at 4). — and concluded that plaintiffs questioned a discretionary policy decision, or the “wisdom” of the strike decision.72×72. Id. (emphasis added). But that conclusion “puts the cart before the horse.”73×73. Id. at 247 n.1. If a conduct-regulating statute prohibits the Executive from carrying out strikes that constitute extrajudicial killings, then the action was not discretionary.74×74. See Al-Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 157 (4th Cir. 2016) (“[T]he military cannot lawfully exercise its authority by . . . engag[ing] in unlawful activity.”); see also Salim v. Mitchell, 183 F. Supp. 3d 1121, 1128–30 (E.D. Wash. 2016). These cases involve contractors, but the reasoning equally applies to military and civilian superiors.
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.75×75. One circuit found allegations that U.S. officials “encouraged and facilitated” foreign government actors insufficient because the TVPA requires the exercise of power under foreign law. Arar v. Ashcroft, 585 F.3d 559, 568 (2d Cir. 2009); see also Schneider v. Kissinger, 310 F. Supp. 2d 251, 267 (D.D.C. 2004), aff’d on other grounds, 412 F.3d 190 (D.C. Cir. 2005). 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.76×76. 28 U.S.C. § 1350 note (2012) (defining extrajudicial killing to exclude “any such killing that, under international law, is lawfully carried out under the authority of a foreign nation”). The international framework applicable to counterterrorism operations is hotly contested.77×77. E.g., Ashley Deeks, Domestic Humanitarian Law: Developing the Law of War in Domestic Courts, in Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies 133, 134–35 (Derek Jinks et al. eds., 2014); Jameel Jaffer, Introduction to The Drone Memos 40 (Jameel Jaffer ed., 2016). But in recent years, domestic courts have entered the debate, filling gaps and crafting “domestic humanitarian law.”78×78. Deeks, supra note 77, at 134; see also, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 629–31 (2006) (reasoning that conflict with al Qaeda constitutes a non-international armed conflict).
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,79×79. The purported basis of the notion of “associated forces” within the concept of cobelligerency and the international law of neutrality is disputed. Compare Al-Bihani v. Obama, 590 F.3d 866, 873 (D.C. Cir. 2010) (dictum) (rejecting argument that law of neutrality applies to non-state actors), with Hamlily v. Obama, 616 F. Supp. 2d 63, 74–75 (D.D.C. 2009) (concluding the opposite). For a discussion of the application of the cobelligerency concept in the post-9/11 era, see generally Rebecca Ingber, Co-Belligerency, 42 Yale J. Int’l L. 67 (2017). and lethal force could be used to target those groups wherever they were subject to the laws of armed conflict.80×80. See, e.g., Press Release, White House, Office of the Press Sec’y, Remarks of John O. Brennan, “Strengthening Our Security by Adhering to Our Values and Laws,” (Sept. 16, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an [https://perma.cc/MD8K-LBYZ]; Press Release, Office of the Legal Adviser, U.S. Dep’t of State, Speech of Harold Hongju Koh, The Obama Administration and International Law (Mar. 25, 2010), https://2009-2017.state.gov/s/l/releases/remarks/139119.htm [https://perma.cc/4LGT-3RRB]. President Trump reportedly signed off on changes to the discretionary guidelines the Obama Administration imposed on the use of lethal force outside Executive-defined conflict zones. Charlie Savage, Will Congress Ever Limit the Forever-Expanding 9/11 War?, N.Y. Times (Oct. 28, 2017), https://nyti.ms/2yTrY7J [https://perma.cc/7PMZ-7P8U]. By contrast, other authorities hold that a law enforcement model governs outside territorial areas of active conflict.81×81. See Int’l Comm. of the Red Cross, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, No. 32IC/15/11, at 15 (Oct. 2015); Mary Ellen O’Connell, The Choice of Law Against Terrorism, 4 J. Nat’l Security L. & Pol’y 343, 355 (2010). The bin Ali Jabers alleged Yemen was such an area at the time of the 2012 strike, directly raising the question.82×82. Complaint, supra note 11, at 28. 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.83×83. See Jaffer, supra note 77, at 38–39; cf. McCann & Others v. United Kingdom, 324 Eur. Ct. H.R. (ser. A) at 45–46 (1995) (describing the requirement under European human rights law that the right to life can only be deprived when necessary to protect against violence or effect arrest). 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.84×84. See Deeks, supra note 77, at 155–60. The Executive is “directly self-interested” in interpreting the rules that govern how it will fight a conflict, id. at 156, and may be prone to putting less weight on individual rights when balancing against “real or perceived security threats,” id. at 157. 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.85×85. See El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 857 (D.C. Cir. 2010) (en banc) (Kavanaugh, J., concurring in the judgment); David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb — Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689, 723–24 (2008).
Judge Brown forcefully contended that an accountability gap exists with respect to drone strikes.86×86. bin Ali Jaber, 861 F.3d at 252–53 (Brown, J., concurring). 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.