President Barack Obama’s drone war is in danger of becoming an Abu Ghraib-style public-relations nightmare, drawing criticism at home from left and right (and, it seems, even many U.S. troops), spurring angry protests in Pakistan and Yemen, and becoming a recruiting tool for al-Qaeda.
Hence the interest in putting the program under some sort of judicial scrutiny. Unfortunately, as good as that idea sounds, it runs into insurmountable practical and constitutional hurdles.
As loosely proposed by Senator Angus King of Maine at John Brennan’s confirmation hearings to lead the Central Intelligence Agency, the U.S. could create a system similar to that involving the Foreign Intelligence Surveillance Act, under which a secret court hears government warrant requests for electronic surveillance of suspected foreign intelligence agents in the U.S.
Given the ticking-time-bomb nature of drone strikes, seeking judicial approval for an individual strike is impractical. More likely, a judge would have to sign off on adding an individual to the administration’s “kill list” of targets. To get approval, the administration would be obligated to make a case that the person is an imminent threat and that capture wouldn’t be possible. (It’s unclear whether the protocol would apply to all targeted people or just to U.S. citizens such as Anwar al-Awlaki.)
Such a system would ostensibly have two benefits: increasing the legitimacy of the drone war and placing a check on the executive branch’s power to decide life and death. On closer examination, both advantages prove illusory.
First, few outraged Pakistanis would be assuaged by the distinction of judicial scrutiny, and civil libertarians would point out that the target is never given a chance to make a case before the judge. This lack of an “adversarial setting” for the subject might be defensible in the case of FISA warrants, but the stakes here are far higher than a simple wiretap.
As for the balance of powers, that is where we dive into constitutional hot water. Constitutional scholars agree that the president is sworn to use his “defensive power” to protect the U.S. and its citizens from any serious threat, and nothing in the Constitution gives Congress or the judiciary a right to stay his hand. It also presents a slippery slope: If a judge can call off a drone strike, can he also nix a raid such as the one that killed Osama bin Laden? If the other branches want to scrutinize the president’s national security decisions in this way, they can only do so retrospectively.
There is also a human problem: Few judges would be eager to find themselves in this role. “That’s not the business of judges,” James Robinson, a former federal appeals judge, told the Washington Post, “to sign a death warrant for somebody who is on foreign soil.” Those who did would face such tremendous pressure to side with the government that the process would probably become a rubber stamp. And why exactly do we think a judge is any better suited to discerning terrorist threats than senior executive branch officials?
There is an alternative, albeit a somewhat unsatisfying one: Congress could create a “cause of action” that would give the families of those killed the ability to seek damages. Clearly, no amount of money is going to make up for a wrongful death. But, as Stephen I. Vladeck of American University’s law school points out, the threat of potential liability might make an administration that much more careful in deciding both the imminence of the threat and the feasibility of capture as an alternative. Although any suit would probably have to be heard in secret for national-security reasons, it would afford a layer of judicial scrutiny to government actions, and would allow a lawyer to make an adversarial case on behalf of the target.
This sort of ex post facto accountability wouldn’t end the controversy over drone attacks. Nor would it substitute for greater transparency on the part of the administration toward the public and the relevant congressional committees. For an administration that’s slowly losing the hearts-and-minds battle, however, such trials would provide a bit of much-needed legitimacy.
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