A senior judge yesterday (30 June 2017) pronounced American democracy "broken" and Congressional oversight a "joke" in failing to check the US drone killing programme.
In a concurring opinion in the DC Court of Appeals case Jaber v. Trump, Judge Janice Rogers Brown appears troubled that the law prevents her court from acting as a check on potential executive war crimes. Calling drone strikes "outsized power" she questioned who would be left to keep them in "check".
The case was brought by Faisal bin ali Jaber, a Yemeni engineer whose innocent family members were mistakenly killed by a US drone in 2012. It sought an apology and a declaration that the strike was unlawful.
The court decided unanimously that it could not rule on the matter, citing precedent preventing the judicial branch from adjudicating 'political questions'.
However, the concerns expressed by Judge Brown, a GW Bush appointee, suggests the case raises serious Constitutional questions and is worthy of Supreme Court attention.
Shelby Sullivan-Bennis, a US attorney for the human rights organisation Reprieve, said: "When a senior judge raises the alarm about our democracy, it's time to sit up and take notice. Judge Brown appears profoundly uncomfortable with her court giving our President carte blanche to kill innocents abroad. She is right to ask who will check the power of the US executive. The bleak answer today is 'no one.'"
Eric Lewis, Partner at Lewis Baach Kaufmann Middlemiss and attorney for Faisal bin ali Jaber, said: "When the judiciary has no role to play in preventing war crimes, "democracy is broken" in the words of appellate judge Janice Rogers Brown in a remarkable concurrence. The Al Jaber case highlights a structural problem under current law. The President can order innocent people killed because of faulty algorithms or bad intelligence and there is no current remedy. In the new world of modern remote warfare there must be oversight and Judge Rogers Brown's opinion is a courageous call for the Supreme Court to prevent impunity in the commission of war crimes by an unchecked executive."
* Read the judgement here
* Reprieve http://www.reprieve.org.uk/
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