The Problem With 'Drone Courts'

For drones, Congress should require oversight reporting similar to that for covert operations.

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Daniel Gallington is the senior policy and program adviser at the George C. Marshall Institute in Arlington, Va. He served in senior national security policy positions in the Office of the Secretary of Defense, the Department of Justice, and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.

Critics of targeting terrorists overseas with drones should read about "Operation Vengeance," the mission to kill Japanese Admiral Yamamoto in 1943. It started with President Roosevelt's order to "get Yamamoto," which was based on a decrypted message detailing Yamamoto's travel plans. In a legendary air combat operation, Yamamoto's airplane was intercepted and shot down by a group of long range P-38's, for a major psychological and strategic victory in the war against Japan.

There are few—if any—legally significant differences between Operation Vengeance and the more modern operations that are run against terrorists overseas. This whether carried out by drones, special operations forces (e.g., Navy SEALs) or a range of precisely targeted weapons delivered from a variety of platforms.

However, because drone operations occasionally take out a terrorist overseas who is also a "U.S. person," and because a recent Department of Justice white paper covering this aspect of the drone program was recently leaked, Congress has gotten more interested in these operations.

[See a collection of political cartoons on President Obama's drone policy.]

Congress should be doing this—it is their job to be doing oversight and they are legislatively empowered to do it. And, they have some new ideas on how perhaps to do it better for drone operations—this is from a recent Fox News story:

Sen. Dianne Feinstein, D-Calif., chairwoman of the Senate Intelligence Committee, said as part of an effort to regulate the killing, she wants to review proposals to create something similar to the Foreign Intelligence Surveillance Court—which reviews requests for wiretaps against suspected foreign agents —for drone strikes.

Sen. Angus King, I-Maine, is pushing the idea the hardest.

According to his vision, the drone court would be an avenue for U.S. officials to argue in secret before a judge why an American citizen should be targeted for death. He said it would be like "going to a court for a warrant" and proving probable cause.

Except in this case, the judge would be ruling not on a search warrant or a wiretap— but a missile strike from thousands of feet in the air, and thousands of miles away.

"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," he said.

[Read the U.S. News Debate: Has Obama Gone Too Far With His Drone Policies?]

This is an interesting idea, and one that will hopefully get a comprehensive look by all concerned—and that evaluative process alone will be good for the operational and oversight systems we have. In that context, however, the idea has some major problems and limitations associated with it—here are a few of them:

  • The pattern for the idea is the FISA Court, which was the legislative compromise reached in 1978 for electronic surveillance done for national security purposes. In this context, an issue that has never been resolved—nor will it likely ever be resolved—is whether FISA is "exclusive." Congress thinks it is and the president (no matter which party) thinks it isn't. To illustrate, during the George W. Bush administration, the president directed a whole new program of NSA surveillances based on his powers as commander in chief. After lots of discussion back and forth, new laws were passed, basically "enabling" the president's program and the "exclusivity issue" was simply pushed. However, the fundamental debate and the arguments each way—remain; these issues would again be relevant in the context of a "drone court".
  • A president would either not sign or veto legislation that removed or replaced the discretion to carry out military targeting decisions. The historical policy precedent here is the exchange between President George H.W. Bush and Congress when Bush vetoed the initial "covert action" bill that was passed in response to Iran-Contra in the 1980s. Again, this aspect of the issue focuses on the discretion of the president as commander in chief to take such actions as he determines necessary.
  • This discussion demonstrates why the drone program should be—primarily—a military program supported by the intelligence community, rather than the other way around. This because the president's powers are far more sharply defined when he acts purely as commander in chief.
  • Discussions concerning "assassination" are not really relevant because we are essentially talking about military targets in the context of an armed conflict. "Assassination," defined as "murder for political purposes" violates standing U.S. policy in the context of intelligence operations. This demonstrates—again—why drone operations should most properly be categorized and described, as military operations against military targets in context of an armed conflict—just like going after Admiral Yamamoto.
  • Some clearer thinking also needs to be done about the general category of "U.S. persons" who are, or may be, "involved" in terrorism overseas; specifically, what level of "involvement" justifies their targeting? For example, do we need "leadership" as a qualifier for operations against them? This is important, because technology is always moving ahead, and drone and drone-like operations will become more routine.
  • [Take the U.S. News Poll: Does Congress Need to Know More About Obama's Drone Policy?]

    So, Senator King's idea, while perhaps novel for application in military-like operations (albeit assisted by the intelligence community) is really a political nonstarter, this for a number of more traditional reasons of executive-legislative tension.

    On the other hand, Congress could be very helpful in dealing with the growing situation where an active member of a terrorist organization or faction thereof is also a "U.S. person" operating overseas.

    [See a collection of political cartoons on Congress.]

    How? By working with Department of Justice to craft legislation defining such persons in categories of "belligerents" and/or "targetable enemy combatants" with no special protections from military action by virtue of their U.S. citizenship. The legislation should also require special oversight reporting similar to what already exists for "covert actions," but with specific inclusion of the armed services committees.

    This approach is far preferable to interfering with the president's powers as commander in chief in the conduct of these increasingly routine military operations against terrorists overseas. And unfortunately, more and more "U.S. persons" are participating against us in terror operations overseas—accordingly, they should be subject to the same risks as their comrades in terror.

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