Such a system would ostensibly have two benefits: increasing the legitimacy of the drone war and placing a check on the executive branch’s power to decide life and death. On closer examination, both advantages prove illusory.
First, few outraged Pakistanis would be assuaged by the distinction of judicial scrutiny, and civil libertarians would point out that the target is never given a chance to make a case before the judge. This lack of an “adversarial setting” for the subject might be defensible in the case of FISA warrants, but the stakes here are far higher than a simple wiretap.
As for the balance of powers, that is where we dive into constitutional hot water. Constitutional scholars agree that the president is sworn to use his “defensive power” to protect the U.S. and its citizens from any serious threat, and nothing in the Constitution gives Congress or the judiciary a right to stay his hand. It also presents a slippery slope: If a judge can call off a drone strike, can he also nix a raid such as the one that killed Osama bin Laden? If the other branches want to scrutinize the president’s national security decisions in this way, they can only do so retrospectively.
There is also a human problem: Few judges would be eager to find themselves in this role.