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2016 | Due Process of War in the Age of Drones, by J. Andresen, Yale Journal of International Law Vol. 41 (1) 2016

The civilian death harm caused by U.S. drone strikes have given rise to debate over how to properly rein in the errors and abuses of the drone program. The author argues that since the law of war requires real-time legal determinations that could not be made in advance by a court, ex post judicial review is the most effective constitutional check on the drone program, satisfying the separation of powers and remedial requirements sorely lacking when the executive remains unchecked by the judiciary. With reference to the Federalist Papers and statements of Supreme Court judges, this article claims that the U.S. constitutional separation of powers - adopted to preclude the exercise of arbitrary power- supports ex post judicial review of drone strikes.

Practice has shown that plaintiff seeking to challenge the legality of a drone attack faces a host of justiciability and procedural and justiciability hurdles. The author designs a litigation strategy for plaintiffs and a legal procedure for judges to overcome these hurdles.

At the outset, the author addresses the jurisdiction hurdle arguing that, as opposed to recent federal court decisions, that the “Political Question Doctrine does not bar judicial review of drone strikes for not the nature of the decision to use military force is challenged, but the legality of the use of force in the practice. In other words, key question is whether the military operation was carried out in a manner in compliance with federal law. Interestingly, the author subsequently builds on the idea that customary international law is federal law and construes “the laws of distinction and proportionality” to be part of federal law since they form part of customary international law and are and explicitly embraced as binding on military targeting. Accordingly, violations of distinction and proportionality provide a cause of action for drone victims and raise federal questions which U.S. federal courts can adjudicate.

In addition, the work states that courts have jurisdiction to review drone strike cases brought by foreign nationals under the Alien Tort Statute (ATS), granting federal district courts jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Section 1350 grants district courts "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Furthermore, given the universal recognition of distinction and proportionality as definite limitations on war and the direct contact and concern of drone strikes for the U.S. territory, the article claims that courts should recognize a cause of action for aliens harmed by unlawful U.S. drone strikes abroad.

The next hurdle victims of drone strikes have faced in recent suits, is legal standing. The work only briefly and superficially touches upon this issue, constraining itself to the finding that drone victims must convincingly show that they have suffered a direct and demonstrable deprivation that can be directly traced to government action, and which can be redressed by a ruling that the deprivation was unlawful.

Having established jurisdiction, a cause of action, and standing, a plaintiff bringing suit as the victim of an unlawful drone strike will find sovereign immunity an almost insurmountable obstacle since U.S. courts have no jurisdiction over cases brought against the United States in the absence of an explicit waiver of sovereign
immunity. To overcome this hurdle, the author pleads for Congress to act in passing legislation expressly waiving sovereign immunity for drone strikes carried out in clear violation of the law of war or amend current legislation.

Given that damages relief is not available to victims of drone strikes at present, it is advanced that the most common alternative is the equitable relief of an injunction or declaratory relief. The Supreme Court emphasized that courts have good reason to grant declaratory relief in cases that raise federal questions and for which there are no other remedies; victims of allegedly illegal drone strikes present such a case. Moreover, the work explains that declaratory relief will serve as a recognition and respect of formal legal proceedings and judgment will bring dignified closure to the victims' wrongful deaths.

The final hurdle discussed it the state secrets doctrine. Under the doctrine, the United States may prevent the disclosure of information in judicial proceedings if there is a reasonable danger of revealing military or state secrets. The author claims that the Obama Administration admitted, in a discussion of possible drone courts, that "Article III judges can receive highly sensitive classified information ex parte; in Washington, D.C., the infrastructure for doing this already exists." Given the ability of U.S. courts to review classified information, the work concludes that state secrets doctrine should not prevent courts from reaching the merits of cases brought by victims of allegedly unlawful drone strikes.