Predictably and sensibly, a three-judge panel of the nation’s second-most important court, the U.S. Court of Appeals for the D.C. Circuit, recently dismissed, unanimously, a lawsuit brought by a Yemeni man, two of whose relatives were collateral fatalities in a 2012 U.S. drone attack that killed three terrorists. The suit asked the court to declare the attacks illegal under several U.S. statutes.
The court, however, invoked the “political question” doctrine: Some politically charged and technical matters are not “justiciable” because courts are inappropriate forums for answering them. They include the wisdom of military actions. What was sensible but not predictable was that Judge Janice Rogers Brown, in addition to writing the opinion for the court, added a blistering opinion in which she upbraided the other branches for dereliction of duties regarding unfettered presidential warmaking, particularly with precision-strike weapons.
“There is pitifully little oversight within the executive. … [C]ongressional oversight is a joke — and a bad one at that. … The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community — including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland. The executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability.” Brown asked: If judges will not check “this outsized [executive] power, then who will?”
Unfortunately, in this, as in so many other areas, Congress is…
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