SECURITY FEBRUARY 11, 2013
On Sunday, Robert Gates, the former Pentagon chief for Presidents Obama and Bush, endorsed an idea that has been floated by Democratic lawmakers in the wake of John O. Brennan's confirmation hearings to be CIA Director: a drone court that would review the White House’s targeted killings of American citizens linked to al Qaida. The administration has signaled its openness to the idea of a congressionally created drone court, which would be modeled on the secret Foreign Intelligence Surveillance Court that reviews requests for warrants authorizing the surveillance of suspected spies or terrorists. But although senators at the Brennan hearings were rightly concerned about targeted killings operating without any judicial or congressional oversight, the proposed drone court would raise as many constitutional and legal questions as it resolved. And it would give a congressional and judicial stamp of approval to a program whose effectiveness, morality, and constitutionality are open to serious questions. Rather than rushing to create a drone court, Congress would do better to hold hearings about whether targeted drone killings are, in fact, morally, constitutionally, and pragmatically defensible in the first place.
From the administration’s perspective, the appeal of a drone court is obvious: Despite the suggestion in the recently released Department of Justice White Paper white paper that the president’s unilateral decisions about targeted killings can’t be reviewed by judges, the administration cites Supreme Court cases that suggest the opposite: namely, that the president’s decision to designate Americans as enemy combatants can only be justified when authorized by Congress, with the possibility of independent judicial review.
Although the Supreme Court has been most sympathetic to bold claims about executive power when they’re supported by Congress and reviewed by independent judges, a congressionally created drone court would be open to a series of practical and constitutional objections. On the practical side, there’s the question of what, precisely, the court would be reviewing. The administration claims the power to order targeted assassinations when three conditions are met: 1) a high level U.S. officials decides the target is a “senior operational leader of Al-Qaida” who “poses an imminent threat of violent attack against the United States”; 2) “capture is infeasible”; and 3) the operation would be conducted according to the laws of war. But it’s infeasible for judges to make split second decisions about whether or not an attack is, in fact, imminent or capture is feasible. For that reason, the most likely focus of a drone court would be the administration’s decision to put a suspect on the targeted killing list in the first place. But, as Steve Vladek of American University has argued, it’s not clear that judges have the constitutional power to issue warrants that can’t be challenged by the targets in a future judicial proceeding. And there are also serious questions about whether or not Congress has the constitutional power to forbid the president from exercising his war powers without getting judicial approval in advance.
In addition to these constitutional objections to a drone court, there’s a broader question about whether it’s wise or desirable for Congress and the judiciary essentially to endorse a secret program that rests on flimsy moral and constitutional grounds in the first place. 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.
During the Bush era, there was an illuminating debate about whether or not judges should be enlisted to oversee the president’s decision to torture a particular suspect. In “The Case for Torture Warrants,” Alan Dershowitz of Harvard Law School argued that “a formal requirement of a judicial warrant as a prerequisite to non-lethal torture would decrease the amount of physical violence directed against suspects.” In arguments anticipating those for a drone court, he added that “law enforcement officials would be reluctant to seek a warrant unless they had compelling evidence that the suspect had information needed to prevent an imminent terrorist attack” and concluded that “the rights of the suspect would be better protected with a warrant requirement.” In a review of Dershowitz’s argument in The New Republic, Judge Richard Posner responded that Dershowitz “overlooks an argument for leaving such things to executive discretion. If rules are promulgated permitting torture in defined circumstances, some officials are bound to want to explore the outer bounds of the rules. Having been regularized, the practice will become regular.” Posner’s case against torture warrants could also be applied to the drone courts: “Better to leave in place the formal and customary prohibitions, but with the understanding that they will not be enforced in extreme circumstances.”
Even those who are drawn to Dershowitz’s case for torture warrants have to agree with Posner that congressional and judicial approval of an extreme practice would help to legitimize and regularize it. That’s precisely what happened in the Guantanamo and warrantless surveillance cases, when lawsuits against the president’s unilateral action led Congress to authorize detention and surveillance under narrower circumstances, with judicial review. And history may be repeating itself: the ACLU’s arguments that unilateral drone strikes are unconstitutional may encourage Democrats in Congress and the White House to embrace the supposed middle ground of a drone court, which could lead to more targeted killings in the future, not less.
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.
The Church commission also concluded that targeted assassinations were counterproductive because “the damage to American foreign policy, to the good name and reputation of the United States abroad, to the American people’s faith and support of our government and its foreign policy is incalculable.” The Church Commission report led to the passage of the federal law prohibiting targeted assassinations, which Obama administration lawyers now claim doesn’t apply to drone strikes. The Church Commission was a high water mark for principled oversight of executive overreaching. Congress needs to begin a similarly exhaustive investigation today into whether targeted drone killings should be permanently banned rather than permanently enshrined into law.
Jeffrey Rosen is the legal affairs editor of The New Republic.