Ahmed Salem Bin Ali Jaber v. United States, 2017 U.S. App. LEXIS 11672

In August 2012 a U.S. drone strike in Khashamir, Yemen killed five men (including imam Salem and local policeman Waleed); Plaintiffs allege the strike was a U.S.-operated signature strike that misidentified targets and caused unlawful civilian deaths.
Plaintiffs (Ahmed and Esam, through next friend Faisal) sued alleging violations of international law, the Torture Victim Protection Act (TVPA), and the Alien Tort Statute (ATS); the United States was later substituted as defendant under the Westfall Act for non-TVPA claims.
The district court dismissed for lack of subject-matter jurisdiction, holding the claims presented nonjusticiable political questions; it also noted additional merits barriers (e.g., TVPA does not authorize suits against U.S. officials).
On appeal the D.C. Circuit reviewed whether the political question doctrine barred judicial review, accepting plaintiffs’ factual allegations as true at this pleading stage.
The court applied its en banc precedent in El-Shifa, distinguishing justiciable statutory or constitutional questions from impermissible second-guessing of military/foreign-policy decisions, and concluded plaintiffs asked the court to judge the wisdom/justification of a military strike.
The panel affirmed dismissal: the political question doctrine precluded the judiciary from adjudicating whether the drone strike was mistaken or unjustified, even though plaintiffs framed their claims under TVPA and ATS.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Justiciability under the political question doctrine	The court can decide whether the drone strike violated law and issue a declaratory judgment	Review would impermissibly second-guess Executive military and foreign-policy decisions	Dismissal affirmed — political question bars review because resolving claims would require assessing the wisdom/justification of a military strike
Applicability of El-Shifa precedent	El-Shifa should not block review of statutory international-law claims	El-Shifa controls: courts cannot evaluate whether a U.S. attack was mistaken or justified	El-Shifa controls; claims call for nonjusticiable inquiry into use-of-force decisions
Relevance of Executive memos on targeting policy	Executive public/legal memos allow courts to enforce limits and interpret the lawfulness of strikes	Executive statements do not concede judicial authority to enforce or second-guess targeting decisions	Court refused to treat Executive guidance as a waiver of political-branch discretion; memos don’t render the matter justiciable
Distinguishing Zivotofsky (statutory/constitutional review)	Zivotofsky shows courts can review foreign-relations matters when the issue is statutory/constitutional construction	This case asks courts to substitute their foreign-policy judgment for the political branches	Court distinguished Zivotofsky: plaintiffs seek to judge tactical military decisions, not interpret a statute; political question doctrine applies

El-Shifa Pharmaceutical Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (political question bars review of claims that require assessing the wisdom/justification of U.S. military strikes)
Baker v. Carr, 369 U.S. 186 (1962) (formulates political question doctrine factors)
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012) (foreign-relations cases are justiciable when courts are asked to interpret statutory/constitutional rights rather than supplant political-branch judgments)
Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) (recasting foreign-policy disputes in tort terms does not make them justiciable)
Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006) (courts may not bind executive decisions in foreign affairs or national security)
Gilligan v. Morgan, 413 U.S. 1 (1973) (military judgments are professional decisions for political branches, not courts)
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (court must address jurisdictional questions before merits)
Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571 (D.C. Cir. 2003) (at pleading stage courts accept plaintiffs’ factual allegations as true)