With controversy growing over the Obama administration’s use of drones to kill suspected terrorists—even, on a few occasions American citizens—interest appears to be growing in some kind of “drone court” modeled on the court authorized by the Foreign Intelligence Surveillance Act to authorize national-security wiretaps. Even Bob Gates, the former secretary of defense who is as centrist as they come, appeared to indicate on CNN yesterday that he was in favor of more oversight of the drone strikes, possibly from such a court.
There is no doubt that putting judicial imprimatur on such strikes would help to dissipate growing opposition to the use of drones and could help to rein in capricious decision-making by this administration or a future administration. This proposal is sure to gain traction on both the antiwar left and the anti-government right—as well as among many in the general public who have a certain unease about the idea of presidentially ordered “assassinations” a la fictional characters like Jason Bourne.
Nevertheless creating such a court would be a very bad idea because it would constitute a dangerous infringement on the president’s authority as commander-in-chief.
To be sure, there are few cases of drone strikes involving American citizens such as Anwar al-Awlaki and it would probably not be any great burden in the war on terror to have those instances reviewed by a court. The danger is that this would be the establishment of a dangerous precedent, with judges soon being called upon to approve all drone strikes, whether the targets are American citizens or not. There is already a fair amount of bureaucracy to vet such strikes and minimize collateral damage, which sometimes results in the suspects making an escape before approval to fire a Hellfire missile can be obtained. Introducing judges into the mix would make such operations intolerably slow and unwieldy.
If judges were given power to review military or CIA strikes taking place outside the country, where would this trend end? With troops having to read detainees on a foreign battlefield their Miranda rights? With judges having to approve in advance all military plans—including armored offensives and artillery barrages—to make sure they don’t infringe on someone’s civil rights?
Such scenarios are not as crazy as they sound. Civil liberties lawyers have already been trying to get the U.S. courts to assume oversight of detainees held in Afghanistan—one federal judge even ruled that these detainees had a right to a hearing before being overruled by the Court of Appeals for the District of Columbia.
Constitutional guarantees of rights are the bedrock of our democracy—but they don’t apply to foreign combatants. Not even if they happen to be citizens—as the entire Confederate Army was during the Civil War. The FISA court is well and good but it only operates on our soil. It doesn’t limit the National Security Agency from carrying out wiretaps abroad. So, too, no “drone court” should be established to judicially regulate the use of lethal force abroad by the military or covert forces of the United States government.
This is not to say that such operations should be above any outside review. Congress has the right to step in and, if it so desires, cut off funding for the drone program. Or it can rescind or narrow the Authorization for the Use of Force that was passed on September 14, 2001, and is the legal basis for the drone strikes against Al Qaeda and its affiliates. What Congress cannot do—because I suspect the appeals courts and the Supreme Court would not allow it—is to try to delegate to the judiciary the job of making decisions on the use of military force abroad.