An appeals court on Friday upheld a decision to dismiss a lawsuit from a Yemeni man whose relatives were killed in a U.S. drone strike he alleges was unlawful.

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit agreed with a lower court that it does not have jurisdiction to judge military actions.

But the author of the court's decision, Judge Janice Rogers Brown, also wrote a concurring opinion in which she lamented that congressional oversight of the military is a “joke” and concluded that “our democracy is broken.”



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“We must, however, hope that it is not incurably so,” she continued. “This nation’s reputation for open and measured action is our national birthright; it is a history that ensures our credibility in the international community.

“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,” wrote Brown, who was nominated to the court by President George W. Bush.

At issue is an August 2012 drone strike in Khashamir, Yemen, that killed Salem bin Ali Jaber, a local imam known for preaching against al Qaeda, and Waleed bin Ali Jaber, a local policeman, among others.

Faisal bin Ali Jaber, a Yemeni engineer, sued the U.S. government for the death of brother-in-law Salem and nephew Waleed. He says the strike violated the Torture Victim Protection Act and the Alien Tort Statute, and has framed the lawsuit as an attempt to lift the secrecy surrounding U.S. drone strikes.

In dismissing the case, the court cited another case, known as El-Shifa Pharmaceutical Industries Co. v. United States, that found the wisdom of military operations is a political question not a judicial one.

“In short, El-Shifa controls the court’s analysis here and compels dismissal of Plaintiffs’ claims,” Brown wrote in the decision. “To borrow a closing line, ‘Under the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of [that] military action taken by the United States.

“Despite their efforts to characterize the case differently, that is just what the [P]laintiffs have asked us to do. The district court’s dismissal of their claims is [a]ffirmed.’ ”

In a statement Friday, human rights group Reprieve, which is working with Faisal bin Ali Jaber, said Brown’s comments in her concurring opinion suggest the case is worthy of Supreme Court review.

“When a senior judge raises the alarm about our democracy, it's time to sit up and take notice,” Reprieve attorney Shelby Sullivan-Bennis said in a statement. “Judge Brown appears profoundly uncomfortable with her court giving our president carte blanche to kill innocents abroad. She is right to ask who will check the power of the U.S. executive. The bleak answer today is 'no one.’ ”