Among the striking moments in President Obama’s national security speech this week, in which he argued it's time to wean America off its nation-at-war mentality, was his apparent receptiveness to the idea of establishing a “drone court" as a check on the use of those weapons.
Called “kill courts” by critics, the proceedings in these proposed courtrooms would determine whom US forces can legally kill via drone strikes.
They presumably would operate much the way that Foreign Intelligence Surveillance Act (FISA) courts do now. Since 1978, these courts have been convened secretly to approve government wiretapping operations on US soil.
Until recently, drone strikes rose steadily under Mr. Obama. In 2010, there were 122 of them in Pakistan, killing some 849 people, according to a report by the New America Foundation, a Washington, D.C., think tank. In 2012, such strikes in Pakistan dropped to 50, killing about 306 people.
Civilian casualties as a result of drone attacks have also been reduced, according to the foundation. “That is partly the result of a sharply reduced number of drone strikes in Pakistan – 12 so far in 2013, compared with a record 122 in 2010 – and also more precise targeting,” according to its report.
The casualty rate for civilians and “unknowns” – in other words, people who are not identified definitively as either militants or civilians – was roughly 40 percent under President George W. Bush. It is now 16 percent, according to the foundation.
The proliferation of drone strikes in recent years prompts a much greater need for oversight, say critics of the drone program, echoing warnings against what Obama characterized on Thursday as a “boundless war on terror.”
“Perpetual war – through drones or special forces or troops deployments – will prove self-defeating and alter our country in troubling ways,” Obama said.
He nonetheless defended drone strikes as pivotal to eliminating Al Qaeda leaders.
Looking into the future, Obama opened the door to the possibility of a “drones court” to increase oversight of the weapons' use.
“The establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process,” he said in his speech. But he also sounded a cautionary note, saying such a court would raise "constitutional issues about presidential and judicial authority.”
The courts could help increase accountability, as will having more drone strikes under the auspices of the US military, rather than under the Central Intelligence Agency – a change the White House has indicated it will make. "It puts drone targeting within a well-established process, with rules of engagement, legal review, oversight, and a post-strike review process," says Mark Jacobson, senior transatlantic fellow at the German Marshall Fund of the United States.
Critics of the drone program, however, are generally not reassured by the notion of oversight from a special drone court. They note that the FISA courts, on which the drone courts would be modeled, operate largely in secret, doing little to improve accountability to the public.
What’s more, they say, national and international laws are already in place governing when drone strikes are legal. Those laws, they add, offer greater transparency than would a secret court.
“I’m not big on this,” Sarah Holewinski, executive director of the Center for Civilians in Conflict, says of the drone courts. “The fact is, we have international laws. We have domestic laws. I would focus on those and say, ‘Look, here’s the due diligence you need to do in targeting a combatant. Here’s what you need to do in order to avoid civilians. Here’s what proportionality looks like.’ ”
Zeke Johnson, director of Amnesty International’s Security and Human Rights Campaign, argues that drone courts would do little to change critics' fundamental concerns about drone strikes.
“What’s needed on drones is not a ‘kill court,’ but a rejection of the radical redefinition of ‘imminence’ used to expand who can be killed – as well as independent investigations of alleged extrajudicial executions and remedy for victims,” he says.
Congress will carefully consider any drone-court proposal, Sen. Ron Wyden (D) of Oregon told National Public Radio on Thursday. Senator Wyden has demanded access to secret documents about the lethal drone attacks on Anwar al-Awlaki, an American cleric living in Yemen who was killed in 2011.
For his part, Wyden expressed reservations “about this idea of just setting up more special courts.”
“I mean, it’s not as if we’ve struck the right balance with respect to the FISA court at this point in terms of protecting the American people. I’ve been trying to get a number of these opinions declassified for years now,” he added, “and I haven’t been able to do it.”