Justice Department rejected Faisal bin Ali Jaber’s offer to drop his federal lawsuit in exchange for condolences Obama has given to western victims of 2012 strike

Faisal bin Ali Jaber came to recognize that in his case, justice was not realistic. The most he could hope for from the American government that killed his family in a drone strike was an apology, much as the families of two wrongfully killed westerners received from Barack Obama.

But the answer came on Wednesday from the Justice Department: no.

Earlier this week, Jaber, a 57-year old Yemeni man, had offered to drop a federal lawsuit he filed in June, which sought to establish that the 29 August 2012 drone strike – which killed Jaber’s brother-in-law and nephew – was unlawful.

He already had reason to believe his family was collateral damage of US drone strikes in Yemen, the open secret of US counter-terrorism. He had received a cash payment of $100,000 in sequential bills from a Yemeni official – condolence payments that the US occasionally sends to relatives of people mistakenly killed.

Since the money didn’t come with any acknowledgement that the strike even occurred, let alone an apology, Jaber visited Washington in November 2013. He even got a meeting at the White House, as the Guardian reported at the time. Still, Jaber left without answers for his family’s deaths. A gambit in a German court to hold the US drone campaign’s foreign partners accountable also went nowhere.

But on Monday, his lawyers at the human-rights group Reprieve wrote to the Obama administration with a new offer. Jaber would settle his case, attorney Cori Crider wrote to Barack Obama, in exchange for “an apology and an explanation as to why a strike that killed two innocent civilians was authorized”.

Jaber had some reason to believe Obama would apologize. The US president, who is globally synonymous with drone strikes, personally expressed his “profound regret” for an errant US drone strike that killed Warren Weinstein and Giovanni Lo Porto, an American and an Italian whom al-Qaida militants held hostage on the Afghanistan-Pakistan border.

“On behalf of the United States government, I offer our deepest apologies to their families,” Obama said on 23 April. His administration promoted the apology as a milestone in transparency and accountability for US counter-terrorism.

But on Wednesday, the Justice Department tacitly rejected the offer. Instead, it argued to Judge Ellen Huvelle that the drone strike – or, as they put it, the “alleged operation” – was beyond her power to scrutinize.

“Plaintiffs ask the Court to second-guess a series of complicated policy decisions allegedly made by the Executive regarding whether to conduct a counterterrorism operation. The Executive makes such decisions after, among other things, weighing sensitive intelligence information and diplomatic considerations, far afield from the judiciary’s area of expertise,” Justice Department attorneys wrote in their Wednesday filing.

As it has in previous cases seeking redress for drone strikes, the lawyers said “the government could not confirm or deny” the strike took place; and added that Jaber was not the proper person to seek redress in US court for any such strike.

To review the circumstances of the Jaber family’s death, the Justice Department said, would involve scrutinizing the applicability of the administration’s stated instances in which it will launch drone strikes: if the strike was unavoidable, addressed an “imminent threat of death”, was proportionate to that threat, or was unlikely to kill civilians. All of that, the lawyers asserted, is beyond the competence or reasonable bounds of judicial power.

Jaber and his lawyers are left wondering why Lo Porto and Weinstein’s families merited forthright apologies, but he does not. Justice Department officials did not provide an explanation to the Guardian.

The White House’s National Security Council chief spokesman, Ned Price, declined to comment on Jaber’s case specifically, but said “the US government takes seriously all credible reports of non-combatant deaths and injuries – irrespective of nationality – and recognizes that every loss of innocent life is tragic. In those rare instances in which it appears non-combatants may have been killed or injured, we have, when appropriate, provided acknowledgement and compensation to the victims or their families”.



“Sorry really does seem to be the hardest word,” said Crider.

“It is appalling that Faisal was deemed worthy of meetings in Washington DC with White House and National Security Council officials, but that the US is trying its level best to avoid apologizing, and to block his quest for justice by kicking him out of the courts,” Crider added. “There is no good reason that the president stood up in front of the world with the Lo Porto and Weinstein families to say sorry for the US’s tragic mistake, but can’t do so for a Yemeni man.”