A FISC for Drones?

With the confirmation hearings of John Brennan as Director of Central Intelligence, news related to the U.S. drone program is coming fast. This time it was made by Senator Diane Feinstein (D-CA), chairwoman of the Senate Intelligence Committee.

Both during the hearing and in comments to the press afterward, Sen. Feinstein suggested that she and other Democrats would be working to create a new court that would review the administration’s decisions on who may be targeted in lethal counter-terrorism operations. (I assume at that such a court would be given jurisdiction over all targeted killings, not just those conducted by drones, despite the common conflation of the two.)

The concept of a court or tribunal of some sort to review or provide oversight for targeted killing decisions, whether restricted to those targeting U.S. citizens or with a broader mandate, is not new (see, e.g., our previous post). However, this is the highest profile such suggestion that has yet been made.

In Sen. Feinstein’s conception, the court would be modeled after the Foreign Intelligence Surveillance Court (FISC), with the aim of increasing transparency and to correct public misconceptions about civilian casualties.

Such a court could also help to alleviate concerns that the administration is overly-permissive in its decisions to use targeted killing instead of other alternatives. For example, the editorial board of the New York Times writes, “Mr. Brennan’s assertions that the government only resorts to lethal force when ‘there is no other alternative’ is at odds with reports of vastly increased drone strikes.” An independent body which reviews such determinations would go a long way in ensuring that such concerns are addressed.

As an interesting aside, it seems that not everyone is concerned that President Obama is sliding into a Bush Doctrine approach. John Yoo wrote in the Wall Street Journal that “[t]he real story revealed by the [white paper released Monday] is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods.” However, this appears to be a minority view.

Ex Ante or Ex Post?

If the FISC forms the model for this targeted killing court, then the assumption would be that it would that the court would review the targeting decisions ex ante. That is, before the administration could act, it would have to produce for the court the evidence or intelligence gathered to support the targeting decision. The court would then review the evidence for some level of sufficiency before allowing the operation to move forward.

However, many of the suggestions for a tribunal to review these killings call instead for ex post review. This is the model required in Israel. The basic idea of this is generally that waiting until the operation is complete keeps the court out of the way of military or para-military operations, but still maintains some oversight.

Robert Chesney of Lawfare provided some very interesting points to consider about such a court, including whether the review should be ex ante or ex post. He falls on the side of ex ante, but some of his commentary actually seems to point in the other direction. First, he points out the all of the serious propositions would subject the nomination process to judicial review, not the “trigger pull.”  This temporally removes the judicial authorization from the final decision to kill, and in Chesney’s view eliminates the concern that the process will interfere with the execution of the operation.

I’m not sure that it does. Names may be placed on the list at any time, conceivably as the result of a time sensitive push within the intelligence community. While I am not an expert in the process of targeting decisions, I think that the executive may need to be able to act quickly on new information that indicates that a subject is targetable. Ex ante review would place an additional hurdle between the decisive intelligence and the operation. Chesney seems to realize this by admitting the need for an “exigent circumstances exemption.” But this exception would itself mean defaulting back to an ex post review.

Additionally, Chesney notes that “Some judges want absolutely nothing to do with this … due to hostility to the idea of judicial involvement in death warrants.  (And that’s without considering the possibility of warrant-issuing judges finding themselves the object of suit or prosecution abroad.)”

Judges would likely be much more comfortable with ex post review. Ex post review would free them from any implication that they are issuing a “death warrant” and would place them in a position that they are much more comfortable with: reviewing executive uses of force after the fact. While there are clearly parallels that could be drawn between the ex ante review proposed here and the search and seizure warrants that judges routinely deal with, there are also important differences. First and foremost is that this implicates not the executive’s law enforcement responsibility but its war-making and foreign relations responsibilities, with which courts are loath to interfere, but are sometimes willing to review for abuse.

Additionally, in search and seizure warranting, there an ex post review will eventually be available. That will likely not be the case in drone strikes and other targeted killings unless such a process is specifically created. There are simply too many hurdles to judicial review (including state secrets, political questions, discovery problems, etc) for the courts to create such an opportunity without congressional action.

Chesney also noted that executive officials involved in the nomination process would prefer an ex ante review to shield them from unexpected civil liability by the victims or their families. I’m sure that it is true that administration officials would like to have “certainty ex ante that they would not face a lawsuit.” However, this is not a guarantee that the courts can provide to the executive. As noted above, as with search and seizure  warrants, there are issues to consider after the approval of the executive action. Ex ante review does not allow for inquiry into important ancillary issues, such as the balancing of risk to civilian bystanders. Also, it provides no assurances that new, exculpatory intelligence forces a reassessment of the targeting decision. Only ex post review would achieve this.

There is also the problem that typified the FISC: permissiveness. Of the tens of thousands of FISA warrant requests, only a handful have been rejected. When allowing for modification of the requests, it is not clear whether any have been finally rejected. There is little reason to believe that the proposed “drone court” will be much different. It is far too likely that a court will hesitate to impede an operation that the executive believes is required to protect out national security. Once the operation is complete, however, the court will not be inclined to hold back its criticism on all manner of aspects of the operation, from the initial targeting decision to the final execution.

Lastly, as Chesney himself points out:

Of course, there is also the question whether creating any such system is constitutional in the first place, especially if the system is framed to encompass more than just US persons…

This may true for ex ante review, but one of the courts’ fundamental mandates reviewing the executive’s activities for abuse of its power. This is even true in cases involving military or foreign affairs, where the executive is given the widest latitude and enjoys the greatest autonomy.

I do share Chesney’s suspicion that a tort-based process in which victims seek damages is not the appropriate means of reviewing targeted killing decisions. However, I am certain that regardless of whether an ex ante review is used, some ex post review must be available. There are simply too many variables between the initial nomination and the final execution of the mission that should be subject to some independent review. Indeed, as a veteran, I know the value of lessons learned in after action reviews, but I also know how often these reviews are shortchanged or skipped altogether. An ex post judicial review will ensure that this does not happen here.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

4 thoughts on “A FISC for Drones?

  1. Pingback: Gates Supports Drone Court | Center for Policy & Research

  2. Pingback: A New Look at Targeted Killing Authorities | Center for Policy & Research

  3. Pingback: Former DOD Lawyer Frowns on Drone Court | Center for Policy & Research

  4. Pingback: Greg McNeil on Drone Courts and Transparency | Center for Policy & Research

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