Do US drone kills need an oversight board? How would it work? (+video)
The confirmation hearing for John Brennan, Obama's pick to be CIA chief, has given impetus to the idea that drone strikes on terror suspects be subject to some form of judicial oversight.
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In a follow-up letter Friday to Feinstein and ranking minority member Sen. Saxby Chambliss (R) of Georgia, Senator King said that the FISA model, in which 11 judges weigh wiretap applications, might be a useful role model in this instance.Skip to next paragraph
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It could provide “an independent perspective” with regards to Americans who throw in their lot with Al Qaeda, King said.
However, whether such a court would apply only to US citizens, or to all potential targeted killing subjects, in practice it likely would function much differently than the FISA model.
As University of Texas law professor Robert Chesney writes on the Lawfare national security blog, it’s unlikely such a court would review actual decisions to pull a trigger. In that sense the analogy with FISA, which oversees actual wiretaps, would not hold.
There just wouldn’t be enough time for a court to consider decisions that must be made as quickly as those in drone warfare, according to Professor Chesney.
“The more serious proposals concede this point, and focus on whether there ought to be judicial review of some kind in connection with the nomination process pursuant to which particular persons may be pre-cleared for the possibility of using lethal force, a decision made long in advance of an actual attack decision,” Chesney writes.
Federal judges might be leery of getting involved in this process, however. And even if they did, they might give the military and the administration much leeway as to factual assertions in applications to add individuals to a target list.
“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,” writes Chesney.
In addition, the very existence of such a court would in some measure be a legal boost to the White House’s current position that the president has the inherent right to target US citizens without formal charges.
“A formal process, even if accepted by the White House, could be viewed as a concession that such power exists,” George Washington University law professor Jonathan Turley told FoxNews.com. “It would be a lethal version of FISA where constitutional provisions are set aside in favor of a largely meaningless process of review.”
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