Among the main obstacles is almost-certain opposition from the executive branch to a dilution of the president’s authority to protect the country against looming threats. Others 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.
In more practical terms, U.S. officials expressed concern that a judicial review would lead to delays that might erode the country’s ability to preempt terrorist attacks.
The idea “is politically and practically difficult and, therefore, unlikely to happen in the end,” said Robert Chesney, an expert on national security law at the University of Texas. “But it seems more likely today than it did just a few weeks ago.”
That is largely because comments from Feinstein and others during a confirmation hearing Thursday on the nomination of John O. Brennan to serve as CIA director made clear that the idea of a special drone court has gained new backing on Capitol Hill.
Feinstein, the chairman of the Senate Intelligence Committee, said the panel would evaluate having judges review targeting decisions much like a special court scrutinizes certain federal wiretapping operations in the United States.
The drone panel, Feinstein said, would be “an analogue of the Foreign Intelligence Surveillance Court,” a panel that meets in secret and rules on government requests to wiretap terrorism suspects inside the United States without traditional court warrants.
A congressional aide said that the Senate committee has not drafted any legislative language and has only begun to consult with legal experts.
The administration has been considering ways to establish an independent review of counterterrorism actions, “including a possible judicial review,” for more than a year, an administration official said on the condition of anonymity.
“We have identified a number of ways . . . some executive, some would require legislation,” the official said, adding that deliberations were ongoing.
Sen. Angus King (I-Maine) endorsed the idea of a special court at Thursday’s hearing and cited growing discomfort with the way the Obama administration has carried out hundreds of strikes through a secret process sealed off from other branches of government.
“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.
Brennan, who served as Obama’s top counterterrorism adviser for the past four years, responded lukewarmly, saying that preempting a terrorist attack is fundamentally different from determining after the fact whether someone is guilty or innocent of a crime.