A proposal to give federal judges a direct role in the nation’s drone campaign gained new momentum this week with a signal from senior lawmakers that they intend to consider creating a special court to oversee the selection of targets for lethal strikes.
But the idea, cited by Sen. Dianne Feinstein (D-Calif.), among others, as a way to impose new accountability on the drone program, faces significant legal and logistical hurdles, according to U.S. officials and legal experts.
Among the main obstacles is almost certain opposition from the executive branch to a dilution of the president’s authority to protect the country against looming threats. Others include the difficulty of putting judges in position to approve the killing of individuals — possibly including American citizens — even if they have not been convicted of a crime.
“Having the executive be the prosecutor, judge, jury and executioner is very contrary to laws and traditions of this country,” King told Brennan. King suggested that the court would involve a “FISA-type process,” referring to the Foreign Intelligence Surveillance Court, the secret court that considers requests for surveillance against people who are suspected of working for foreign governments. “At least that would be some check on the activities of the executive.” The days, weeks, and months-long process of determining whether someone can be targeted, King suggested, meant that targeted killing was not like soldiers shooting each other on a traditional battlefield and should be subjected to some form of judicial accountability.
Brennan was negative to non-committal, telling King that although the idea was “worthy of discussion,” that courts were traditionally used for adjudicating guilt or innocence, not to prevent the sort of “imminent” threat Brennan claims lethal force is reserved for. A recently leaked Department of Justice memo on targeted killing, however, defines “imminence” as membership in a terrorist organization, not necessarily involvement in an unfolding plot that threatens American lives. Nor are courts used solely to adjudicate guilt—King noted that judges also approve warrants.
Some judges want absolutely nothing to do with this. Not that this is dispositive. But I was struck by what recently-retired District Judge John Robertson (D.D.C.) had to say when this came up at an ABA panel we were on a few months ago (the audio is here, and the statement came toward the very end if I recall correctly). Though very much a judge associated with the view that the judiciary plays a critical role in checking the executive in national security-related litigation (the topic of our panel), he made very clear his hostility to the idea of judicial involvement in death warrants. (And that’s without considering the possibility of warrant-issuing judges finding themselves the object of suit or prosecution abroad.) Of course, other judges could feel differently. But at any rate, the anecdote contributes to my next point…
A core benefit to judicial review, presumably, is that judges might detect and reject weak evidentiary arguments for targeting particular persons. I wouldn’t bet on that occurring often, however. Judges famously tend to defer to the executive branch when it comes to factual judgments on matters of military or national-security significance. I’ve argued that they should not always do so, but that doesn’t mean they won’t. Especially when the stakes are as high as they will be represented to be in such cases.
Machiavelli tells us that men are venal self-deceivers, but then he gives his Prince permission to do all these monstrous things, trusting him not to get carried away or turn into a monster himself.
Our founders were more careful. Our founders understood that leaders are as venal and untrustworthy as anybody else. They abhorred concentrated power, and they set up checks and balances to disperse it.
Our drone policy should take account of our founders’ superior realism. Drone strikes are so easy, hidden and abstract. There should be some independent judicial panel to review the kill lists. There should be an independent panel of former military and intelligence officers issuing reports on the program’s efficacy.
If you take Machiavelli’s tough-minded view of human nature, you have to be brutal to your enemies — but you also have to set up skeptical checks on the people you empower to destroy them.
It should be clear by now that President Obama and his terrorism advises are hypocrites. When they campaigned for office, they claimed that the Bush Administration had violated the Constitution and trampled individual rights in its quest to stop terrorist attacks. Now we have an administration that keeps Guantanamo Bay open, keeps military commissions running, continues terrorist surveillance, and regularly drops drone missiles. But I’m glad they are hypocrites, because they chose to keep the policies that have kept us safe these 11 years instead of sticking to their misguided principles. If the Obama folks ever had the good graces to thank President Bush, I am sure he would say “[you’re] welcome.”
“This controversy is not going away,” Schultz, a critic of the administration’s drone program, said. “The boundaries of transparency are still undefined.”
Yet in a survey of his (reliably liberal) viewers, 78 percent said they agreed with “the policy of targeted killing of American citizens.”
“I voted for President Obama because I trust his values and his judgment, and I believe that he is a fundamentally responsible actor,” she added. “Without gratuitously slamming ex-President Bush, I think he displayed extraordinary lapses in judgment in executing his primary responsibility as commander-in-chief, and put troops in harm’s way imprudently.”
“President Obama would have exercised better judgment and he has exercised better judgment,” Ball said. “What would George W. Bush do? That’s our standard? We would never allow a power to the presidency that we wouldn’t feel comfortable giving to George W. Bush?”…
“Do you feel the same about George W. Bush having the nuclear codes as you do about President Obama?” Ball asked in conclusion. “Call me a hypocrite, but I sure don’t.”
Via the Daily Caller.