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DC Circuit Judge on Drones: 'Our Democracy Is Broken'

Judge Janice Rogers Brown said courts should not step into political issues, like deciding whether the United States wrongfully killed bystanders in a drone attack.

Then the judge told us how she really felt about it.

"Our democracy is broken," she wrote in Ahmed Salem Bin Ali Jaber v. United States. "We must, however, hope that it is not incurably so."

"Signature Strikes"

The U.S. Court of Appeals for the District of Columbia unanimously affirmed the dismissal of a complaint by a civilian family against the U.S. government. The plaintiffs alleged that government drones killed two bystanders in a "signature strike" in Yemen.

In a signature strike, the government targets anonymous suspected militants based solely on their observed pattern of behavior. The victims in the plaintiffs' case were not targets, but died when the drones attacked others who were with them.

The appeals court said the case presented a non-judiciable question under the political question doctrine. The doctrine precludes judicial review of national security decisions.

"Put simply, it is not the role of the Judiciary to second-guess the determination of the Executive, in coordination with the Legislature, that the interests of the U.S. call for a particular military action in the ongoing War on Terror," Brown wrote for the court.

A Bad Joke

But in a concurring opinion, Brown expressed serious concerns about the political question doctrine and the government's responsibility for taking innocent lives. The courts cannot oversee Congress on such national security matters, she said, but neither can Congress.

"[C]ongressional oversight is a joke -- and a bad one at that," she said. "Anyone who has watched the zeal with which politicians of one party go after the lawyers and advisors of the opposite party following a change of administration can understand why neither the military nor the intelligence agencies put any trust in congressional oversight committees."

Brown said the president is empowered to "police his own house," but there is "pitifully little oversight within the Executive." She acknowledged the limits of the judiciary because of the political question doctrine, but said it provides "poor shelter in this gale."

Ultimately, she called upon the other branches of government to do something about the problem. Court watchers said the DC Circuit should reconsider the case en banc.

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