Congressional oversight of drone strikes a ‘ joke,’ judge says

America’s “democracy is broken” and congressional oversight of presidential military decisions is “a joke,” says a federal appeals court judge — not some liberal firebrand, but one of the courts’ most outspoken conservatives, former California Supreme Court Justice Janice Rogers Brown.

Brown was appointed to the U.S. Court of Appeals in Washington, D.C., by President George W. Bush in 2005 after nine years on the California court. She offered her harsh assessment Friday in the case of a Yemeni man who lost two relatives in an August 2012 drone strike, apparently ordered by the U.S. military during President Obama’s administration.

The man, Faisal bin Ali Jaber, alleged that the missiles that killed his brother-in-law, a local imam, and his nephew, a policeman, were fired as “signature strikes” — aimed at three other men, also killed, who had supposedly exhibited suspicious behavior — and violated both U.S. and international law. The government could have tried to capture the alleged terrorists rather than first resorting to lethal force, the suit said.

Brown, writing for a three-judge panel, upheld a federal judge’s dismissal of the suit, saying it involved a political question that courts lacked authority to decide.

“It is not the role of the judiciary to second-guess the determination of the executive, in coordination with the legislature (Congress), that the interests of the U.S. call for a particular military action in the ongoing War on Terror,” she wrote.

But in a separate opinion she issued on her own, Brown said the ruling, while compelled by the Constitution, meant that drone strikes and other technological warfare would proceed without supervision or accountability.

She cited Obama administration reports estimating as many as 900 noncombatants had been killed in U.S. drone strikes from 2009 through 2015, and said nongovernmental groups had offered much higher estimates. While the “push-button war” has killed terrorist leaders and disrupted their operations without risking U.S. troops, Brown said, such technological weaponry “encourages the use of military force” in hundreds or thousands of actions with few restraints.

“If judges will not check this outsized power, then who will?” she asked.

Boards appointed by the president to oversee the military decisions engage in “pitifully little oversight” and often seem “more interested in protecting and excusing the actions of agencies than holding them accountable,” Brown said.

“Congressional oversight is a joke,” she said, marked by partisan wrangling and complaints that the military is hiding vital information from congressional committees — which, when they receive such information, “all too often leak like a sieve.”

“Our democracy is broken,” Brown said. “We must, however, hope that it is not incurably so,” she added, calling on the president and Congress to “establish a clear policy for drone strikes and precise avenues for accountability.”

A lawyer who brought the suit praised Brown’s comments.

“She is right to ask who will check the power of the U.S. executive,” said Shelby Sullivan-Bennis, an attorney for the nonprofit Reprieve U.S. “The bleak answer today is, no one.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @egelko

Ruling online

Read the ruling, including Justice Janice Rogers Brown’s separate opinion: https://tinyurl.com/yaozh3f8