Checking Obama’s Assassination Power: A Drone Court Is Just One Way

Before everyone gets excited about secret judicial oversight of executive branch war-fighting powers, think about the origin of the problem and what expanding secret courts might mean.

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TONY KARUMBA / AFP / Getty Images

A raven, an aerial reconaissance vessel, is lauched by members of the U.S. Army outside the village of Madowza'i Kalay, Afghanistan, Sept. 7, 2012.

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.”

13 comments
GayPatriot
GayPatriot

Isn't this why we are supposed to have... CONGRESS?!? RT @TIME: Could 'drone courts' help check Obama's power? | http://t.co/RyZtz9Wa

WhisperLoudly
WhisperLoudly

Kill all the traitors living abroad and fighting against us. 

hasletthoney
hasletthoney

I'm for anything that will limit King BO's reign in the US.


j.villain1
j.villain1

FISA has rubber stamped every request put before it. Might as well hire the robo-signers the banks hired.

formerlyjames
formerlyjames

I care about "Americans" living abroad plotting for the destruction of America?  No.  I care about intelligent and strategic assault of terrorists rather than stupid wars?  Yes.

drudown
drudown

Let me get this straight. 

After wasting over a trillion dollars and wrecking illimitable human lives beyond belief on account of the Bush Administration invading Iraq on false pretenses...the People are supposed to be "outraged" over President Obama employing the most cost-effective means (i.e., drones) to combat our enemies abroad on account of the highly speculative risk the Federal government is going to kill its own citizens? Give me a break already.

Let's look at the evidentiary record. The Bush Administration flat out lied to the People to "sell" a war under false pretenses, e.g., "there is no doubt Saddam has acquired nuclear weapons." - (then) VP Cheney 

How many innocent Iraqis and how many US soldiers have been killed or maimed on account of the protracted ground war in Iraq?

What, the use of drones is not a preferable alternative? Get real. 

forgottenlord
forgottenlord

So in other words.....until Congress puts its own checks and balances on the Executive Branch, the secret court might be the closest we get to a normally functioning government?

12StepGolf
12StepGolf

@GayPatriot @TIME thre r 3 brnches, wht ya gonna do wth some1 thinks he's emperor? w/o msm keping in chk gets away with murder literally

CarrollYarbrough
CarrollYarbrough

we have traitors hedre too.hurry reid and nancy peloshit.

MrObvious
MrObvious

@drudown 

What should upset people is the fact that you might trust Obama, but can you trust the next guy? I don't trust anyone who cannot articulate the guidelines for their life taking powers. If we can find the time to articulate rights in a constitution I do believe anyone that we entrust power in should at least do the same.


drudown
drudown

@CarrollYarbrough 

Yes, and Santa Claus exists and we should all believe the "Marlboro Report" that 'proves' smoking doesn't harm habitual users. 

drudown
drudown

@MrObvious @drudown 

As a threshold matter, you presuppose that the speculative risk that use of drones by, say, the Clinton Administration (deal with it) is material enough to pursue a less desirable course of action in the here and now, e.g., use less cost-effective means of combat that (1) results in more American casualties and (2) exacerbate the Zionist propaganda that the Western powers want to take over the Middle East. Surely you cannot credibly contend that, say, the citizens of Pakistan would prefer the US marines to be stationed in their country (a la Iraq) over drones flying overhead? As for the misplaced Constitutional argument, I have yet to hear anyone articulate how this discretionary use of military power against "enemy combatants" contravenes the express language of the Bill of Rights, as if, in the end, the People at home should have some undue remorse for the rights of traitors seeking to harm our women and children here at home by conspiring with the enemy? This whole "drone controversy" is just a GOP red herring trying to undermine the Obama Administration's authority and, as always, it conspicuously omits any cost/benefit analysis. Tell me, if the last GOP president was locking up US citizens in secret prisons and torturing them to get inadmissible, coerced confessions, if we are going to have a robust debate on abuses of power, let's start with what arguably may be deemed war crimes...instead of rehashing contrived "controversies" a la Benghazi.