Worried about the President killing American citizens as part of the war against al Qaeda? Maybe you’ve read the latest idea to impose some due process on the killings: establishing a secret court to review classified intelligence substantiating the executive branch’s belief that the American it wants to kill is actively fighting a war against the country.
Before everyone gets excited about secret judicial oversight of executive branch war-fighting powers, it’s worth thinking about the origin of the problem its supposed to fix and what expanding secret courts might mean.
First, the idea of a new secret national security court is popular because one already exists: the Foreign Intelligence Surveillance Court, established in 1978 as a check on US spying on American citizens. A good review of the origins of that court is at Lawfare today. The short version of the FISC court is that it is made up of respected judges appointed by the Chief Justice of the U.S. Supreme Court, and it approves a variety of wiretapping and other investigative methods used by the executive branch against “American Persons” suspected of working for foreign powers anywhere in the world, including in the U.S.
The FISC has been successful, and it’s powers were expanded to oversee parts of George W. Bush‘s global war on terror. And as a general matter, federal courts often hear secret evidence. But opposition to specifically designated secret courts is written into the legal DNA of this country (see the Court of the Star Chamber as source of the Fifth Amendment right against self-incrimination). This seems to be the line of argument the ACLU is taking in opposing the idea of a secret court. Its one thing to give unelected officials the power of approving surveillance based on secret evidence, with secret deliberations; it’s another to have them approving killings as part of a war. Expanding secret court authority in that direction is a slippery slope. At least that seems to be the logic of the ACLU.
It is interesting that Harvard’s Jack Goldsmith, from the right, thinks such a court would have constitutional problems (presumably infringing on the commander in chief’s authority to wage war). Which gets at the problem that needs to be solved, which is less the lack of judicial oversight than Congressional fecklessness.
The authority of the commander in chief to kill Americans who have joined an enemy in war is (nearly) undisputed. But Congress has ceased performing its constitutional duty as the only branch of government given the authority to declare war under the Constitution. A better guarantee of a protection of citizen’s rights in the war against al Qaeda might be for Congress to declare war under its constitutional authority (rather than issue a vague Authorization for the Use of Military Force, as it did in 2001); define the battlefield (downtown Karachi?); the nature of the organization against whom the commander in chief had the authority to wage war (a network, not a nation state); and conduct regular oversight. To restrain the executive branch, Congress could explicitly empower the courts to deliberate on damages for Americans hurt or killed by drone strikes in that war (as Stephen Vladeck argues here).
Another idea is to follow the precedent of executive branch courts (including military commissions) and establish a “court-like” process for adjudicating whom the president can put on the targeted killing list. That too could be subject to Congressional oversight. That approach has been advanced by former acting Solicitor General and the lead lawyer in the Hamdan case, Neal Katyal. “The notion that a generalist federal court is going to sit to review drone strikes is simply implausible and unwise,” Katyal says. “However, there are some very good reasons why the Executive Branch should employ an internal process that resembles a court in some ways, but that would be staffed by experts.”