There’s now a debate about whether critics of the lawyers who justified President Bush’s torture policies have applied a double standard to the lawyers who justified President Obama’s targeted killings. But regardless of whether you think targeted killings are more or less morally troubling than torture, there’s no doubt that a judicial endorsement of those policies is something that would make many judges uncomfortable. On a recent panel, retired Judge James Robertson, who resigned from the Foreign Intelligence Surveillance Court in protest against President Bush’s secret spying program, made clear his opposition to involving judges in signing death warrants.
Rather than rushing to endorse a program surrounded by serious moral, constitutional, and practical doubts, Congress would do better to exercise its oversight function in the traditional way: with fact-finding hearings. In the wake of concern about targeted assassinations abroad and domestic surveillance at home, the Church Commission in the 1970s launched an extensive investigation of the government’s secret intelligence activities. After investigating CIA plots to kill foreign leaders, including Patrice Lumumba of the Congo, Fidel Castro of Cuba, Rafael Trujillo of the Dominican Republican, Ngo Dinh Diem of Vietnam and Rene Schneider of Chile, the Church Commission offered moral and practical reasons for its conclusion that “the United States should not engage in assassination,” including the fact that “the assassination plots were not necessitated by imminent danger to the United States,” despite the government’s claims to the contrary.