Proposal to give federal judges a role in drone strikes faces hurdles

Correction: An earlier version of this article used an incorrect name for a retired judge from the U.S. District Court for the District of Columbia. He is James Robertson, not John.

February 8, 2013

A proposal to give federal ­judges a direct role in the nation’s drone campaign gained new momentum this week with a signal from senior lawmakers that they intend to consider creating a special court to oversee the selection of targets for lethal strikes.

But the idea — cited by Sen. Dianne Feinstein (D-Calif.), among others, as a way to impose new accountability on the drone program — faces significant legal and logistical hurdles, according to U.S. officials and legal experts.

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.

“That is an inherently executive-branch function,” Brennan said, although he allowed that the idea is “worthy of discussion.”

Some judges have already indicated that they would resist such a role.

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.”

Civil liberties groups also cited concerns, including the fact that the model being touted — the FISC — deliberates in secret, hears only the government’s side in each case and is often regarded as a rubber stamp for government requests.

“There is no reason to create a new court,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union. Jaffer said 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.

Some proposals have centered on using a special court to evaluate cases in which a U.S. citizen might be targeted. Proponents argue that would help ensure the targets’ constitutional right to due process.

But that narrow approach would address only a tiny fraction of the drone campaign. Most attacks now are “signature strikes,” in which targets are selected based on suspicious patterns of activity and the identities of those who could be killed is not known.

Chesney said the argument that prior court review would lead to dangerous delays is contradicted by the way target lists are generated now, through a series of meetings and reviews involving multiple intelligence agencies.

“It looks positively judicial already,” except that it excludes the judicial branch, Chesney said.

Greg Miller covers the intelligence beat for The Washington Post.
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