WASHINGTON — Predictably and sensibly, a three-judge panel of the nation’s second-most important court, the U.S. Court of Appeals for the D.C. Circuit, recently dismissed, unanimously, a lawsuit brought by a Yemeni man, two of whose relatives were collateral fatalities in a 2012 U.S. drone attack that killed three terrorists. The suit asked the court to declare the attacks illegal under several U.S. statutes.
The court, however, invoked the “political question” doctrine: Some politically charged and technical matters are not “justiciable” because courts are inappropriate forums for answering them. They include the wisdom of military actions. What was sensible but not predictable was that Judge Janice Rogers Brown, in addition to writing the opinion for the court, added a blistering opinion in which she upbraided the other branches for dereliction of duties regarding unfettered presidential warmaking, particularly with precision-strike weapons.
“There is pitifully little oversight within the executive. … [C]ongressional oversight is a joke — and a bad one at that. … The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community — including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland. The executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability.” Brown asked: If judges will not check “this outsized [executive] power, then who will?”
Unfortunately, in this, as in so many other areas, Congress is in perpetual flight from responsibility. It should begin by revisiting the 2001 Authorization for Use of Military Force, which was enacted while the World Trade Center and Pentagon still smoldered.
The AUMF authorized the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.” As Rosa Brooks, a former Pentagon official and now Georgetown law professor, crisply notes, five and three of those words especially matter.
In her simultaneously witty and disturbing book “How Everything Became War and the Military Became Everything” (2016), she notes that the AUMF does not authorize force “against anyone, anywhere, anytime” but only against those who “planned, authorized, committed or aided” 9/11. And it authorizes force for a specific purpose — to “prevent any future attacks” against this nation by such entities, “not to prevent all future bad acts committed by anyone, anywhere.”
Last October, believed to be for the first time ever, a U.S. Navy vessel fired SM2 interceptor missiles to defend itself against a missile attack. The attack came…