The families of an anti-Qaeda cleric and a police officer killed in an American drone strike in Yemen filed suit in federal court in Washington on Sunday night, asking the court to declare that the strike was unlawful.Credit: Nicholas Kamm/Agence France-Presse — Getty Images
The lawsuit, which seeks no monetary damages, is described by the complainants as an attempt to break through the secrecy surrounding drone strikes and to have the court impose some public accountability for mistakes made in the program.
It cites President Obama’s decision in April to publicly disclose that a separate American strike, on a Qaeda compound in Pakistan, had inadvertently killed two Western hostages, an American and an Italian.
The lawsuit notes that Mr. Obama said at the time that the hostages’ “families deserve to know the truth” and that the United States was willing “to confront squarely our imperfections and to learn from our mistakes.”
The lawsuit asks for the same consideration for the families of Salem Ahmed bin Ali Jaber, the cleric, and Waleed bin Ali Jaber, his cousin, the sole traffic police officer in their village of Khashamir. Both men were Yemeni citizens. Credit: Nicole Bengiveno/The New York Times
“There is a simple question at the heart of this claim,” the suit says. “The president has now admitted to killing innocent Americans and Italians with drones; why are the bereaved families of innocent Yemenis less entitled to the truth?”
The lawsuit was filed in Federal District Court here by Faisal bin Ali Jaber, an engineer and the brother-in-law of the cleric and the uncle of the police officer, with the assistance of the international human rights group Reprieve.
Mr. Jaber — who lives in Sana, the Yemeni capital, speaks English and has traveled widely — is seeking the status of “next friend” to the immediate family members of the two dead men, saying he is in a better position than they are to pursue the lawsuit.
Jennifer Gibson, a lawyer at Reprieve, called Mr. Jaber’s lawsuit “a last resort to get something that should be very simple — an acknowledgment that his relatives were wrongly killed, and a public apology for their tragic deaths.”
John O. Brennan, formerly Mr. Obama’s counterterrorism adviser and now the director of the C.I.A., said in 2013 that he believed the United States should publicly acknowledge mistaken strikes. But it has happened only once, when the Western hostages were killed in Pakistan.
Independent legal experts said the lawsuit probably faced long odds.
“Although this particular drone strike was by all accounts one of the darker moments in the U.S. targeted killing program, it’s hard to be optimistic about this suit’s chances for success,” said Stephen I. Vladeck, a professor of law at American University.
The suit challenges the legality of the strike under the Torture Victim Protection Act and the Alien Tort Statute. But Mr. Vladeck said the torture law does not usually allow claims against American officials, and a federal appeals court has dismissed parallel claims from Iraqi and Afghan detainees who said they were tortured while in United States’ custody.
The drone strike in question has drawn considerable attention as a case study in what can go wrong when missiles are fired by operators thousands of miles away based on incomplete intelligence. The lawsuit adds new details to the account shared by Faisal bin Ali Jaber when he visited Washington in 2013 and met with members of Congress and the Obama administration.
Salem bin Ali Jaber, 40, a father of seven who lived with his family in the coastal city of Mukalla, had come to the village of 3,000 people to give a sermon. Faisal was back home in the village to celebrate the wedding of his eldest son.
Salem’s sermon rebutted Al Qaeda’s religious justification for the killing of Yemeni government officials and civilians.
“I challenge Al Qaeda to show me one piece of evidence in Islam that says such killing is justified,” Salem said, according to Faisal, who was present. Family members, worried about provoking Al Qaeda, asked him to tone down his preaching, but he declined, saying it was his duty as an imam to counter extremism.
Five days later, the day after the wedding, three young strangers drove into the village looking for Salem. Family members put them off, fearing that they were Qaeda members angry about the sermon, but they returned twice and Salem finally agreed to meet them. Waleed, the police officer, offered to go along for protection.
As the five men talked, four Hellfire missiles killed them all, as villagers watched.
Though the United States government has never acknowledged it publicly, it appears that drone operators had evidence that the three young men were Qaeda members and assumed the other two must be as well.
Faisal bin Ali Jaber received a phone call from a Yemeni security official hours after the attack informing him that Salem and Waleed had not been the intended targets of the strike. Subsequently, Yemeni officials gave the families of the dead men compensation totaling $155,000. They assumed the money originated with the United States, but no explanation or apology was forthcoming, according to the lawsuit.
There is at least one precedent for such a lawsuit, involving the deaths in separate American strikes in 2011 of Anwar al-Awlaki, an American cleric who had joined Al Qaeda in Yemen, and his 16-year-old son, Abdulrahman, whose killing American officials have described as a mistake.
Nasser al-Awlaki, father of Anwar and grandfather of Abdulrahman, filed suit in federal court along with Sarah Khan, the mother of Samir Khan, an American propagandist for Al Qaeda killed along with Anwar al-Awlaki.
Because those killed were Americans, that lawsuit claimed that killing them had violated their constitutional rights. But Judge Rosemary M. Collyer of the United States District Court for the District of Columbia dismissed that lawsuit in 2014, ruling in part that the courts should defer to the executive branch in matters involving war.
“In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role,” she wrote.