Another Voice Against A Secret Drone Court

Those who endorse giving secret, unelected courts the authority to oversee summary war time executions of American citizens, should explain why Congressional oversight isn't better.

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In the Wall Street Journal today, former Attorney General Michael Mukasey argues against giving secret, unelected courts the authority to oversee summary war time executions of American citizens. Instead, he says Congress should take action to clarify the commander-in-chief’s powers in the war on al Qaeda.

Mukasey focuses a fair amount of criticism at the Obama administration for what he says is hypocrisy in drone use and misguided reliance on international law. But he also advances and refines arguments others on the left and right have made against a secret drone court. The heart of his argument is that drone courts would be impractical and that Congress should take its Constitutionally-mandated responsibility for declaring and defining the war.

Mukasey says the secret drone court, championed by the New York Times editorial board, is a bad idea because

Judges have no basis or background that suits them to review targeting decisions and no way to gather facts independently. Because they may serve for life, there is no way to hold them politically accountable for a decision—how best to defend the country—on which elected politicians are supposed to rise or fall. If it is simply a matter of introducing into the process some figure in whom the public has unreasoning trust, we might just as plausibly have the president’s targeting decisions reviewed by Oprah.

Instead, Mukasey says, Congress should revisit the 2001 Authorization for the Use of Military Force that provides the legal underpinning for Obama’s war fighting powers against al Qaeda and its affiliates.

One way to untangle this situation would be to amend the AUMF to clarify the scope of the conflict in which the U.S. is engaged. On the tactical level, that would permit Congress to define the circumstances in which the U.S. may detain and interrogate—measures at once more humane than drone strikes and far more likely to yield actionable intelligence rather than merely consume it. The original law doesn’t mention detention or interrogation, instead referring only to the use of armed force.

On a strategic level, a legislative effort to amend the AUMF would require lawmakers to face up to the reality that America’s adversary isn’t simply this or that group but rather those who pursue a totalitarian Islamist ideology.

Congress has been feckless recently. But in the fight against al Qaeda, Democrats have been eager to show toughness and Republicans have been eager to undo the impression they support an imperial presidency. The multi-year effort to refine and institutionalize the Patriot Act shows the peoples’ representatives, to whom the Constitution gives the authority to declare war, have been capable of addressing the fight against transnational, asymmetric enemy. Those who endorse giving secret, unelected courts the authority to oversee summary war time executions of American citizens, should explain why Congressional oversight isn’t better.

9 comments
drudown
drudown

Tell me, why would the Judicial branch be the "check" on Executive power in EVERY other instance (e.g., FISA court) but not under the instant facts?

The GOP leaders want to "politicize" the President's military decisions, regardless of the consequences or violation of the Separation of Powers.

MrObvious
MrObvious like.author.displayName like.author.displayName 2 Like

Congress has been feckless recently. But in the fight against al Qaeda, Democrats have been eager to show toughness and Republicans have been eager to undo the impression they support an imperial presidency.


That would explain Dems objection to it and GOPs shoulder shrugging indifference.

forgottenlord
forgottenlord like.author.displayName like.author.displayName 2 Like

Because Congress is useless?

If Congress wants to actually put some *sight* into *oversight* on the drones, I fully welcome it.  If someone wants to create a proper system built on checks and balances to address the drone war, I'm all for it.  Until then, here's a way for Obama to put some reigns on himself without needing the ugly corner of Washington.

forgottenlord
forgottenlord like.author.displayName like.author.displayName 2 Like

Congress can't even agree on whether defaulting would damage America's credit rating.  What makes you think they can do something as simple as trying to reign in drones.

And even if they did, how long would it be before someone in Congress accused someone else of being soft on terrorism?

forgottenlord
forgottenlord like.author.displayName like.author.displayName 2 Like

Where is my edit command!

One more thing: Congress only acts when it thinks there is a benefit to itself.  The vast majority of people in Congress don't think there's enough people who care if they actually take a big whack at reigning in the drone war.  Status quo doesn't harm them and the risk of tackling the problem is too high.  Result: they will never, ever, ever do anything on the issue until the outcry becomes more than a small corner.

forgottenlord
forgottenlord

@drudown

1) I'm not Republican.

2) I'm far from the most anti-drone voice on this board

3) The anti-drone argument is that by not giving the terrorists a fair trial in a court of law, it constitutes special treatment of a negative sort.

But my point is far more nuanced.  I don't buy the third argument because the terrorists are engaged in acts of war against the United States and her allies and therefore fall under categories equivalent of, say, Germans soldiers - many of whom were also American Citizens.  Their treatment was never contentious.

However, my concern is towards the concept of what constitutes an "act of war" and proof that an individual is engaged in an act of war against the US.  And to that extent, it becomes very difficult to start a full understanding of where the limits of executive power end.  Let me run through a few examples for you from least contentious to most.  I'm hoping that by the end of the list, you'll have found a few that you could easily say "well, maybe those we shouldn't bomb."  In all cases, I'm assuming non-Israeli citizen who lives in the general region.

- Leader of Al Queda or affiliates

- Member of Al Queda or affiliates who have participated or can conclusively be linked to the planning or execution of an attack on military or civilian targets of the US or ally 

- Member of Al Queda who is a known associate of above and can be demonstrated as being part of the organization

- Member of Al Queda with no evident connection with an act of terrorism or any planning (eg: fresh graduate from a training camp who is not believed to have been given a mission yet)

- Member of an affiliate group with known acts of war against US or ally who 

- Individual who is a known associate of any of the above but has not demonstrated a personal interest in terrorism (eg: Bin Laden's doctor)

- Individual who has provided funds to Al Queda or affiliates

- Member of an affiliate group that has not conducted any acts of war, has not been demonstrated as planning, participating, or in any way been tied to a potential future act of war, but has demonstrated favorability towards Al Queda and her more militant affiliates

- Member of a mercenary group which has demonstrated no ideological positions but regularly takes work from Al Queda or affiliates.

- Individual with no demonstratable links to Al Queda or affiliates but has indicated support and has demonstratable desire to join Al Queda or affiliates

- Individual with no demonstratable links to Al Queda or affiliates but is related to someone in the above

- Individual with no demonstratable links to Al Queda or affiliates, has expressed support for Al Queda or affiliates but has no demonstratable desire to join Al Queda or affiliates

- Individual who has no demonstratable links to Al Queda or affiliates, has neither expressed support or opposition to Al Queda, but has clearly proclaimed opposition to American activities in the region.

The problem right now is there is no reason other than rational thinking and insane cost that prevents Obama from targeting everyone on this list.  We also aren't sure how far down the list he's gone (and he reasonably doesn't need to tell us) nor do we have a clear way of demonstrating - even confidentially - where a particular individual is on the list.  The idea behind a secret court or Congressional oversight is they would:

1) Require the administration to demonstrate where on this list a particular individual falls

2) Set a threshold on this list of where the administration can use drone strikes.

While I trust Obama to get this right 95% of the time internally, it is always good to have someone else who can look at the evidence you have and make sure that you can convince them that you're logic and assumptions are correct.

It's not that I want to limit Obama's leeway on it, I just believe in the "sober second opinion".

drudown
drudown

@forgottenlord 

Why don't you let our military leaders handle the military decisions and you GOP lackeys stick to raising money for loser Super PACs.

drudown
drudown

@forgottenlord 

Surely you cannot credibly contend that the "risk" of President Obama using drones on these poor, poor terrorist turncoats in, say, Yemen warrants some kind of "special treatment"? Or has everyone in the GOP gone soft on terror, even if it seems to suit them politically? Your "outcry" is treasonous babble.