For months, there have been human rights or civil liberties groups sharply condemning President Barack Obama’s targeted killing program especially because he holds all the power to decide who lives and who dies, however, up until a Justice Department “white paper” on the program was leaked by NBC News, there was little discussion by US news media about the nature of the program.
The leak has now led members of Congress to at least make it appear that they are publicly interested in engaging in oversight of the program. And, yesterday, a proposal to establish a court similar to the Foreign Intelligence Surveillance Court was the focus of articles from the Washington Post, Associated Press and Reuters. It was also mentioned in a few newspaper editorials praising drones.
On Thursday, during the confirmation for John Brennan, who Obama nominated to become the next CIA chief, Sen. Angus King advocated for a court to be established that would be similar to the Foreign Intelligence Surveillance Court that authorizes requests from the National Security Agency for wiretaps:
Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country, and particularly in a situation where there is time. If—a soldier on a battlefield doesn’t have time to go to court. But if you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.
Brennan appeared to rebut this suggestion by saying, “A court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield as well as actions that are taken against terrorists, because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives.”
He would not give his opinion of waterboarding being torture because he is not a lawyer, but, when asked to draw conclusions about the legality of the drone program or proposals for reform, the architect of much of Obama’s targeted killing policy was perfectly fine with giving his opinion.
The Washington Post highlighted Sen. King’s suggestion, along with the fact that Sen. Dianne Feinstein, chair of the Senate Select Committee on Intelligence, indicated she would review “a proposal to create an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes.”
It concluded the proposal faces two obstacles: (1) “almost-certain opposition from the executive branch to a dilution of the president’s authority to protect the country against looming threats” and (2) “the difficulty of putting judges in a position to approve the killing of individuals — possibly including American citizens — even if they have not been convicted of a crime.”
The first obstacle is an excuse to maintain and grow the imperial presidency. The second obstacle makes it clear that having a court involved may not make it “legal” because there is something ethically wrong with having an assassination or targeted killing program (as the Obama administration calls it).
The Post’s article suggested it would be hard to find a judge willing to preside over the court:
At a law conference last year, former judge James Robertson, who retired from the U.S. District Court for the District of Columbia in 2010, referred to the 2011 drone strike in Yemen that killed Anwar al-Awlaki, an American-born Muslim cleric accused of plotting attacks with al-Qaeda.
“That’s not the business of judges . . . to sign a death warrant for somebody who is on foreign soil,” Robertson said. “If you brought that case to me, I would put that case back on the wheel and send that to another judge.”
If judges are concerned about being the one tasked with deciding who lives and who dies, that does not indicate it is a power that should remain in the control of the executive. It means it is a power that, perhaps, no president or agency in the Executive Branch should be able to wield.
The Associated Press‘ quoted Democrats, who supported the idea of a FISA-type court:
“A layer of judicial review could ensure additional checks on the designation of targeted individuals and determine whether sufficient evidence has been produced,” said Sen. Mark Udall, D-Colo.
Said Rep. Adam Schiff, D-Calif.: “I don’t have in mind to redefine the circumstances in the memo” describing the legal rationale behind the strikes “but rather set up a process for prospective or retrospective analysis of how drone strikes are made.”
The American Civil Liberties Union (ACLU), which has been at the forefront of appropriately challenging how the targeted killing program operates, does not think another court needs to be established. Christopher Anders, a senior legislative counsel for the ACLU, told Reuters:
“We have courts that are fully capable and experienced” in dealing with sensitive national security matters, he said. Federal courts in Washington, New York City, and Alexandria, Virginia, routinely handle highly classified materials yet operate with more transparency and more independence than the ultra-secretive foreign intelligence court…
But, as Melvin Goodman, a former CIA analyst, noted on “Democracy Now!”, there has been “only one time where the FISA court actually disallowed an attempt by the National Security Agency to conduct warrantless eavesdropping.” He added, “Don’t expect a FISA-type court to bring some kind of legality to this issue.”
Jameel Jaffer, deputy legal director for the ACLU, said to the Post, “A better way to make the administration accountable would be to use existing courts and allow suits that challenge the legality of past strikes, similar to wrongful-death actions against police departments.” Essentially, this is what the ACLU & the Center for Constitutional Rights (CCR) are seeking to do with their lawsuit, Al-Aulaqi v. Panetta, which challenges the targeted killing of three US citizens—Anwar Al-Awlaki, Samir Khan and Abdulrahman Al-Awlaki—each killed by a drone strike.
A larger issue is that most of the targeted assassinations of people put on the kill list and targeted are not or will not be US citizens. They are more likely to be individuals the government thinks are leading members of al Qaeda or one of its affiliates. In some cases, they might not even be on the list and suffer death in a “signature strike” launched against people the US government thinks are engaged in suspicious patterns of behavior.
Placement of individuals, who aren’t US citizens, may not be as legal as one would think. From Reuters:
Geoffrey Robertson, one of Britain’s most prominent human rights lawyers, described the current U.S. drone-strike policy as “execution without trial” and “international killing (which) … violates the right to life.”
Robertson said that in his interpretation of international law, any court set up to review candidates for possible drone attacks would have to publish target lists, so that those listed would have an opportunity either to give themselves up or be able to have friends or relatives petition for their removal from the lists.
“This should be an open process,” Robertson said.
The discussion of setting up a FISA-type court seems to be limited to using it to review the placement of US citizens, but there’s a strong case to be made that foreign persons would need to be reviewed as well.
The chief problem with establishing an Assassination Court is that all these proposals call for the creation of a secret court for a covert program that could impose a further check on power, but the public would likely never know how the court was checking the executive’s power to place terror suspects on a kill list. If it functioned like the FISA court, the CIA (and perhaps even the military) would never want judge’s decisions on who to kill and not kill to be public.
Should the court be like the secret FISA court, someone from the executive would show up and tell the judge why it needed authorization. The person to be targeted would not be able to make a case for why he or she should not be targeted and assassinated. The target would not get to produce evidence that he or she was not plotting an attack or involved in such al Qaeda operations.
In conclusion, this proposal for a FISA-type court is being offered up as a quick fix to a program that is increasingly perceived as unethical or inhumane. Yet, all it would do is involve an additional player. It would not make the program any less illegal or authoritarian. That it is being described as a FISA-type court is a good indication that the program would likely still operate with the same flimsy legal basis that it operates under now. The judge would be in an untenable position where he or she would not want to second-guess claims that a person posed an “imminent threat.” The judge would likely rubberstamp all requests to place a person on the “kill list.”
Similar to the creation of a “drone playbook,” such a court would do more to further codify and institutionalize the targeted killing program than bring it in line with constitutional or international law. In that sense, the Obama Administration may end up supporting it so it can continue to execute people and maintain this idea that the world is a battlefield and there is no geographical limit to who can be killed and where they can be targeted.