In response to the disturbing reality that Americans can be killed by the federal government without charge or trial – or even clear evidence – some are pushing for oversight of the drone assassination program.
Currently, the government claims that they can say there is “due process” when unnamed Obama administration individuals secretly review classified evidence and declare the authority to assassinate Americans and others.
While the Obama administration claimed they were going to release the contested legal memos to intelligence committees outlining the justification for the so-called targeted killing program carried out by drones in Yemen (via a base in Saudi Arabia) and elsewhere, these memos have not been released for scrutiny in the court system.
The response to what the New York Times calls “the hidden bureaucracy directing lethal drone strikes” appears to be even more hidden bureaucracy in the style of the secret Foreign Intelligence Surveillance Court (FISC), built upon the Foreign Intelligence Surveillance Act (FISA).
While it is claimed that having a court approve the adding of names to a kill list, at least for American citizens, “is no longer beyond the realm of political possibility,” according to Robert Chesney, a law professor at the University of Texas, this proposal is still problematic.
The idea has been promoted by legislators like Senator Dianne Feinstein, according to the Washington Post, and yet it faces significant obstacles like the “almost-certain opposition from the executive branch to a dilution of the president’s authority to protect the country against looming threats.”
Other obstacles “include 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,” according to the Post.
The American Civil Liberties Union (ACLU) opposes the move, according to the Times, because it is just judicial review in a new secret court.
Hina Shamsi, director of the ACLU’s national security project, argued that extradition and criminal prosecution of terrorists is a much better option.
“I strongly agree that judicial review is crucial,” Shamsi told the Times. “But judicial review in a new secret court is both unnecessary and un-American.”
Judges don’t appear all that excited about approving the killing of Americans without actually being convicted of any crimes.
James Robertson, a retired FISC judge rejected the notion that judges should sign off on “death warrants” at an American Bar Association meeting in November of last year.
“My answer is, that’s not the business of judges to decide without an adversary party to sign a death warrant for somebody,” Robertson said.
While Senator Angus King, a Maine Independent, recently endorsed the idea of a special court, King ignored some crucial facts.
“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,” King said.
However, if this is really going to be an “analogue of the Foreign Intelligence Surveillance Court” as Feinstein proposed, it would be little more than ceremonial.
When former Attorney General John Ashcroft filed an appeal in 2002, it was “the first formal challenge to the FISC in its 23-year history. Until this incident, the FISC has approved all but one FISA application sought by the government since the court’s inception,” according to the Electronic Privacy Information Center (EPIC).
Similarly, Wired’s Threat Level reported in 2011, “The secretive Foreign Intelligence Surveillance Court approved all 1,506 government requests to electronically monitor suspected “agents” of a foreign power or terrorists on U.S. soil last year, according to a Justice Department report released under the Freedom of Information Act.”
“The FISC did not deny any applications in whole, or in part,” the report to Senator Majority Leader Harry Reid stated.
Why would we believe that another secret court would perform any differently?
Jack Goldsmith, a Harvard Law School professor writing for Lawfare, doesn’t seem all that enthusiastic about the proposition.
“To my mind the ex post damages action has fewer constitutional problems than ex ante vetting by a secret court,” Goldsmith writes. “But I think that, to satisfy presidential prerogatives and the demands of classified information, it much more likely that what we end up with (if we end up with anything new in this area) is a weak-tea FISC-like ex ante vetting system without ex post damages review.”
For those unfamiliar with the terms, ex ante means before the event and essentially looks at future implications of a decision whereas ex post means after the event and reflects on what has already happened. A quick overview of the terms can be read here.
“If I am right, we are at the beginning of a movie we have seen before, with the [Guantanamo Bay] habeas litigation: a human rights NGO brings lawsuits that aim to stop a practice but that end up narrowing it a bit but also putting it on a firmer and more legitimate legal foundation that enables it to continue with less political or legal controversy,” Goldsmith writes.
In other words, if such a secret court is created, it seems like it likely won’t result in anything all that positive.
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