WASHINGTON (CN) - A surviving relative of two Yemeni men killed by Hellfire missiles fired from a U.S. drone made a rare appearance Tuesday at the D.C. Circuit to fight for an apology from the government.
The wrongful-death case brought by Faisal bin Ali Jaber, a Yemeni engineer who described the reality of living under the U.S. drone program as "a living hell," marks the first time a U.S. court has granted a civilian drone victim a hearing.
Ali Jaber lost his brother-in-law Salem bin Ali Jaber - an imam who regularly preached against al-Qaida in his sermons - and his 26-year-old nephew Waleed bin Ali Jaber, a local traffic cop, after a U.S. drone strike exploded near a local mosque in Hadramout in eastern Yemen in 2012. The strike also killed three unknown youths.
"The three youths — the presumed intended targets of the strike — were not high-ranking members of a terrorist organization, nor did they pose a threat — imminent or otherwise—to the lives of any Americans," Ali Jaber's appeals brief states.
Last year, Ali Jaber sued President Barack Obama, former Secretary of Defense Leon Panetta and former CIA Director David Petraeus not for monetary damages, but for an apology and explanation of why his relatives were killed.
"This is a really important action for this court," Ali Jaber's attorney Jeffrey Robinson said to the D.C. Circuit’s three-judge panel Tuesday morning.
Robinson called on the court to decide whether it will be held hostage to the political-question doctrine that prevents courts from interfering in executive policymaking - one of the primary reasons cited by U.S. District Judge Ellen Huvelle for dismissing the lawsuit back in March.
Will the court abandon its responsibilities to review real claims about whether executive branch use of deadly force abroad complies with international and U.S. law whenever the U.S. says that a claim touches on foreign or military affairs, Robinson asked the judges.
"That is a remarkable assertion," he said, one that is not required by the D.C. Circuit’s precedent.
"It is particularly remarkable in this case because the government asked this court to abandon its responsibilities without the government having ever first had to put forward any evidence - any suggestion, any statement - that the court's exercise of its responsibilities would actually intrude upon the foreign and military affairs operations that the political-question doctrine is designed to protect," he added.
Obama defended the drone program's legality in his final national security address last Tuesday and touted its efficacy in reaching terrorists in places where it is impossible to capture them.
"Under rules that I put in place and that I made public, before any strike is taken outside of a warzone, there must be near certainty that no civilians will be killed or injured," he said.
But an amicus brief filed by three former drone operators in support of Ali Jaber contests that assertion.