Should the US establish some sort of secret court to conduct judicial oversight of drone strikes used to kill terror suspects?
That’s an idea that’s been discussed for some time in Congress and in Washington national security think tanks. It’s acquired new salience because of Thursday’s Senate Intelligence Committee nomination hearing for John Brennan, President Obama’s pick to be the next CIA chief.
Committee Chairman Sen. Dianne Feinstein (D) of California said that the time has come to shine a light on the drone program and any other method of targeted killing used in the war against terrorism. She and other senators, she said, were considering legislation establishing a secret court to oversee the targeted killing process, similar to the Foreign Intelligence Surveillance court, which now looks at national security wiretap applications within the US.
Earlier this week NBC obtained a 16-page summary of classified documents that outline the legal process the administration currently follows in drone strike authorization. Under pressure from Congress, the White House allowed Senator Feinstein and other members of the Intelligence Committee access to those classified documents prior to the Brennan hearing.
“I think the process set up internally is a solid process,” said Feinstein. “I think there’s an absence of knowing exactly who is responsible for what decision. So I think we need to look at this whole process and figure a way to make it more transparent and identifiable.”
Mr. Brennan, for his part, did not dismiss the idea. Under questioning from Sen. Angus King (I) of Maine about the process for targeting terrorist suspects who are US citizens, the current Obama counterterrorism adviser said a court might be something for the US to at least consider.
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.
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.”